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Lord Rodger of Earlsferry: I cannot accept the amendment. As the noble Lord will be aware, as far as prosecutors in Scotland are concerned, the overriding principle is, and has always been, that the Crown must always act in the interests of justice. As part of that general approach, all members of the procurator fiscal service are reminded that they must disclose to the defence any information which supports the defence case even though it may be damaging to the Crown's

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case. They are also told that the overall aim is to try to ensure that the true facts of any case are laid before the judge or the jury. That is the fundamental starting point.

Many members of the Committee will be aware that there have been cases in England and Wales in recent years in which critical issues in relation to disclosure have arisen and where rather wide-ranging doctrines of disclosure have been laid down. I do not comment on the position in England and Wales except to say that it is common knowledge that that has proved to be a particularly difficult and burdensome matter for the police. In addition, it is not always clear that the best way to advance the interests of justice is for the defence to be, in effect, snowed under with documents.

That is an important point to remember in the context of a system such as ours which prides itself, and rightly prides itself, on the idea of getting people to trial within 110 days. We are dealing with a very different system. We are also dealing with a different system in that it is most important to remember that, whereas in England and Wales the defence does not have the right to investigate a case by going and precognoscing the witnesses for the Crown, that has always been the practice in Scotland. The defence can investigate the case itself. The defence is therefore in a position to see the witnesses, to deduce what is the case, and to investigate it on its own behalf.

The background in Scotland is different from that in England in that situation, and a sweeping measure of this kind does not seem to me to be necessary. For example if the amendment is taken literally, then all material relating to the charge or charges, however irrelevant or obviously ill-founded it might be, would have to be made available. All sorts of pieces of paper would have to be made available. In such a situation, agents and counsel would rightly feel under a duty to go through all the material. That would lead inevitably to the kind of delays which are already happening in England because of the wide disclosure system. The basic approach of the amendment is misconceived. It does not address the issues as they arise in Scotland, and I cannot accept it.

Lord McCluskey: I support the Lord Advocate's position in this matter. At an earlier stage, in a slightly different context, I explained that I retained my faith in the Lord Advocate's Office as being a Ministry of Justice. That is important, and I was especially interested when a case came before me recently which illustrated a further difference between England and Scotland in that regard. In that case counsel came forward with a specification of documents, essentially to recover everything that the Crown had obtained in the course of the investigation. I refused to allow that to be granted. In the course of the discussion, the Crown declined to support a dictum by another judge in another case in which the court seemed to be saying that the Crown had a right to conceal matters from the defence. That may be going too far, but that is how it was understood in the profession.

The Crown still has its heart in the right place in that regard. The word "heart" comes to mind because I believe that the English case related to Judith Hart. Was

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it Judith Hart? I cannot remember. The English case was the one that horrified me: the idea that tea chests full of documents had to be delivered to the defence at enormous public cost —money being diverted from other social and legal services —then the tea chests had to be analysed just in case there was something there.

We are fortunate in Scotland in that we have speedy trials, and we have a Crown Office that does the job thoroughly. I am happy to support the position of the Lord Advocate in this matter.

Lord Macaulay of Bragar: I was interested to hear the contributions made by the noble and learned Lord the Lord Advocate and the noble and learned Lord, Lord McCluskey. I did not find them convincing. I am not interested in whether the Lord Advocate—I use the term broadly, not with reference to the noble and learned Lord the Lord Advocate himself—or the Crown Office think that something discovered in the course of an inquiry is relevant or not, or whether it is ill founded. That is for the defence to decide. That is why the amendment is carefully worded. It does not envisage what the noble and learned Lord described: that a solicitor will come along and pick up a couple of tea chests full of copy productions, take them along to his office and spend a couple of weeks going through them.

The only obligation on the prosecutor is to make such material available. I can clearly remember a fraud case in which I was involved. It was only after a great battle with the Crown Office that we managed to obtain access to a number of papers and files. The Crown Office had them but we could not see them. I cannot remember whether seeing them was of any advantage—it may not have been. However, a great deal of time was taken up in trying to persuade the Crown Office at least to let us see the files. Only after a long battle were we allowed access to the documents. I cannot understand the objection that is raised.

No one will be snowed under with documents. We ask only that the cloud of secrecy is removed from criminal investigations in Scotland. The accused or his representatives should be allowed to see the evidence and the background to it just as much as the prosecutor. After all, the state brings the prosecution and there is no reason why the individual, who is having a case brought against him by the state, should not have access to state documents.

I understand that in some continental countries—for instance, in Sweden—one can walk down to the procurator's office and ask to see the file on a case, even that in respect of a murder. One can read the statements and do whatever one likes. At one time, the press were free to use the statements in the procurator's file. I do not encourage that, but perhaps the amendment will encourage openness between the Crown and the accused and will encourage the defence to agree the matters to which the Bill and earlier amendments relate.

Obviously I shall get nowhere with the amendment tonight. I shall note with interest what the noble and learned Lord said and in the meantime I beg leave to withdraw the amendment.

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Amendment, by leave, withdrawn.

Lord Rodger of Earlsferry moved Amendment No. 28:

Page 7, line 7, leave out from ("(1)") to (" and") in line 10 and insert ("Subject to subsection (1A) below, the prosecutor and the accused shall each identify any facts which are facts—
(a) which he would, apart from this section, be seeking to prove;
(b) which he considers unlikely to be disputed by the other party; and
(c) in proof of which he does not wish to lead oral evidence,").

The noble and learned Lord said: I have already spoken to Amendments Nos. 28 and 29. I beg to move.

On Question, amendment agreed to.

Lord Rodger of Earlsferry moved Amendment No. 29:

Page 7, line 13, 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.").

On Question, amendment agreed to.

9.15 p.m.

Lord McCluskey moved Amendment No. 30:

Leave out Clause 11 and insert the following new clause:

("Facts not to be disputed at trial

.—(1) This section applies where in any criminal proceedings (whether they are proceedings on indictment or summary proceedings)—
(a) it appears to the prosecutor that there are facts which are or may be uncontroversial; and
(b) the prosecutor has—
(i) specified those facts, in a statement signed by him or on his behalf, as facts which, unless they are challenged under this section, shall be deemed to have been conclusively proved under subsection (2) below; and
(ii) served a copy of the statement on the accused not less than 14 days before the trial.
(2) Where this section applies, then, unless the accused or, if there are two or more co-accused, at least one of the accused has served notice on the prosecutor in accordance with subsection (3) below that he challenges any matter contained in the statement, the facts so far as unchallenged shall be deemed to have been conclusively proved.
(3) A notice under subsection (2) above shall be served not less than 6 days before the trial or by such later time as the court may in special circumstances allow, being not later than the time when the trial commences.
(4) Subsection (2) above shall not preclude a party from leading evidence of circumstances relevant to, or other evidence in explanation of, any matter contained in the statement concerned.
(5) Notwithstanding the foregoing provisions of this section, the presiding judge—
(a) may, on the motion of any party made within the relevant period, in special circumstances; or
(b) shall, on the joint motion of the parties made within the relevant period,
direct that the service of a copy of a statement on the accused under this section shall be of no effect in relation to such matter contained in the statement as is specified in the direction.
(6) In subsection (5) above "the relevant period" means the period beginning with the commencement of the trial and ending with the commencement, in the case of—

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(a) proceedings on indictment, of the speeches to the jury;
(b) summary proceedings, of the address by the prosecutor to the judge on the evidence.
(7) For the purposes of subsections (3) and (6) above, a trial commences, in the case of—
(a) proceedings on indictment, when the oath is administered to the jury;
(b) summary proceedings, when the first witness is sworn.
(8) Where the accused has served a notice under this section or, if there are two or more co-accused, at least one of the accused has served such a notice, then, the fact of the service of the copy of the statement under subsection (1) above so far as it relates to the matter challenged, or of the service of that notice, shall not be referred to, if the proceedings are—
(a) on indictment, in the presence of the jury before the verdict is returned; or
(b) summary proceedings, before the judge is satisfied that the charge concerned is proved.
(9) A statement mentioned in subsection (1) above shall be in such form as may be prescribed by Act of Adjournal.
(10) A copy of a statement required to be served on the accused, or a notice required to be served on the prosecutor, under this section may either be personally served on the accused or the prosecutor (as the case may be) or sent to him by registered post or by the recorded delivery service; and a written execution purporting to be signed by the person who served such copy or notice, together with, where appropriate, a post office receipt for the relevant registered or recorded delivery letter shall be sufficient evidence of such service.
(11) This section shall not apply in relation to proceedings commenced before the coming into force of this section; and for the purposes of this subsection solemn proceedings are commenced when the indictment is served.").

The noble and learned Lord said: I can deal with the amendment briefly, although it is the longest in the Marshalled List, because as they say in California, "You don't have to be a rocket scientist to work out where this came from". It is lifted almost straight from the proposed Clause 7 of the Criminal Evidence Bill contained in the Scottish Law Commission Report. I made only one important amendment. In subsection (1) (a) of the proposed new clause I have added the words, "or may be" in order to make the point that, under the heading "Facts not to be disputed at the trial", if it appears to the prosecutor that there are facts which are or may be uncontroversial the prosecutor has this obligation.

I need not deal with the amendment at great length because I have already dealt with the general matters of principle. However, in order to assist the noble and learned Lord the Lord Advocate, the Minister, and their respective staffs—I believe that this falls within the jurisdiction of the Lord Advocate—I draw attention to what I said in respect of the Law Reform (Miscellaneous Provisions) (Scotland) Bill on 17th May, 1990—reported at col. 425 of the Official Report. I had intended to refer to paragraphs 4.1 to 4.26 of the Scottish Law Commission Report. However, we also have paragraph 36.04 of the Thomson Committee report, which is interesting to note. The question at issue was who should have the responsibility for taking initiative in reaching agreement. The conclusion was:

    "We therefore recommend that the initiative for reaching agreement on these matters should lie with the Crown".

I wish to repeat what I have said many times; that in practical terms the Crown has an experienced and competent fiscal service. In Scotland it is served by a

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diligent police force which does the Lord Advocate's bidding as it is required to do by statute. Therefore, all the facilities exist for the prosecution to establish the facts. Furthermore, as the burden of proof rests on the prosecution from start to finish, the prosecution knows what facts must be established. Accordingly, it is right for many reasons —and these are the principal reasons—that the initiative should lie with the prosecution.

On the other side of the fence, one has a legally-aided solicitor whose budget is substantially smaller, whose facilities are negligible compared with those of the Crown and whose diary is likely to be full of many other cases. Therefore, it is right that there should not be an equality of obligation; the duty should lie on the Crown. For those reasons, I beg to move.

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