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Lord Fraser of Carmyllie: I do not think that there is anything between us on this matter. The amendment requires that the procedure for the new mandatory diets provided for in Clause 12 be amended to state explicitly that the court may ask questions of the accused, if the accused is represented, through his solicitor. The intention of the clause is certainly to permit questioning of the accused through his solicitor. That is not stated explicitly in the clause because in our view it does not need to be. That is because such questioning would be permitted by virtue of the ordinary law of agency. It would therefore be inappropriate to make express provision for solicitors, particularly given that there is another relevant category of agency; namely advocates.

I hope that with that brief reassurance the noble Lord will feel able to withdraw the amendment.

Lord Macaulay of Bragar: Perhaps the amendment should have read "his representative" rather than "his solicitor". However, having heard what the noble and learned Lord had to say about the matter I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 36 to 38 not moved.]

Lord Fraser of Carmyllie moved Amendment No. 39:

Page 9, leave out lines 13 to 16.

The noble and learned Lord said: In moving Amendments Nos. 33 and 34 I spoke to Amendment No. 39. I beg to move.

On Question, amendment agreed to.

Clause 12, as amended, agreed to.

Lord McCluskey moved Amendment No. 40:

After Clause 12, insert the following new clause:

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("Calculation of specified period: effect of detention

. In section 101 of the 1975 Act after subsection (6) there shall be inserted—
"(7) The running of the 12 months period specified in subsection (1) of this section shall be deemed to be interrupted by the detention of the accused on remand in any other part of the United Kingdom and that period shall be deemed not to run during any period while the accused is detained on remand in any other part of the United Kingdom in a prison, borstal institution, remand centre, detention centre or remand home.".").

The noble and learned Lord said: At Second Reading I mentioned the Rowan case. That will be found at col. 567 of Hansard for 29th November 1994. I do not find it necessary to add anything to what I said then except that there has to be some legislative solution. It is better that it should be delivered swiftly rather than postponed.

The Minister, the noble and learned Lord, Lord Fraser of Carmyllie, wrote to me on 8th December, 1994 saying:

    "I agree that the present position is not satisfactory. But in seeking to remedy it we must, I believe, take account of the effect of transfer on proceedings in England and Wales as well as Scotland".

He has been in touch with the Home Office to invite officials to consider what is to be done.

In essence, what is being said is that we cannot legislate to remove this Scottish problem until the English Home Office decides to stir itself and do something about it. It is not for me to comment on the mysteries of government in any way, but I have sought to provide an internal Scottish solution to the problem. It is one which simply puts into statute a statutory interruption of the running of the 12-month period specified in Section 101(1).

I do not like to do this. I am strongly in favour, as I am sure that Ministers are, of our system of time checks. On the other hand, we have to recognise that when that situation occurs, we either allow the time to run out and the person gets off altogether—he is not brought to trial, simply because he is remanded in custody in England —or we have to go to the court and seek an extension on cause shown. That is an expensive operation. It may well not be granted in particular cases and we could therefore again lose a prosecution.

The third solution is something of this kind. I do not suppose that the amendment is technically perfect. But I hope that if not tonight, at least between now and the final stages of the Bill in this House, the Government will consider some solution along those lines. I beg to move.

Lord Rodger of Earlsferry: I am grateful to the noble and learned Lord for bringing forward the amendment. As he has explained the matter, I do not need to go into it in detail. The problem arises where someone in Scotland is due to come for trial but is in custody in England. In the legislation as framed at present, it is not possible for that person to be released for trial in Scotland. Since relevant time limits run in Scotland, the result is that there is a danger that those time limits may be infringed with the result that trial in Scotland of offences in Scotland would not be possible. That is clearly undesirable. Although much less likely,

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there is certainly potential for a case to occur the other way round: for proceedings to be debarred in England by virtue of a similar situation with someone in custody in Scotland.

I do not believe that the matter has arisen simply due to a legislative oversight. I think that the position was regarded as being more complicated and difficult to resolve than those which were dealt with by the Criminal Justice Act 1961. As the noble and learned Lord indicated, the position has been the subject of discussion since the time of the Rowan case last year which thrust the matter once more to our attention.

I believe that the noble and learned Lord is right in envisaging his solution as being somewhat second best. However, I am grateful to him for putting it forward. Until a better solution can be found, for the reasons that he has given I believe that his proposal is desirable and acceptable. As the noble and learned Lord said, there are some matters of detail which have to be considered. But I am happy to accept the amendment in principle and undertake to bring an amendment back which deals with any technicalities.

Lord McCluskey: On that happy note, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 13 [Intermediate diet in summary proceedings]:

Lord Fraser of Carmyllie moved Amendment No. 41:

Page 9, line 29, leave out ("in paragraph (a), the word "and"") and insert ("the word "and" immediately following paragraph (a)").

The noble and learned Lord said: In speaking to Amendment No. 41, perhaps I might speak also to Amendment No. 187. These are amendments to correct a minor error which occurred at the drafting stage of the Bill. I beg to move.

On Question, amendment agreed to.

Clause 13, as amended, agreed to.

Clause 14 [Uncontroversial evidence]:

Lord Macaulay of Bragar moved Amendment No. 42:

Page 10, line 14, after ("proceedings") insert ("in which the accused is legally represented").

The noble Lord said: This is a minor amendment. Amendments Nos. 45 to 47, 55 to 57, and 60 to 74 are a series of amendments. I do not wish to take up the Committee's time, so I shall not move each amendment separately. The amendments came from the Law Society of Scotland which considers that the timescale is too short. Perhaps the Government will examine the timescale involved in those parts of the Bill. I beg to move Amendment No. 42.

Lord Rodger of Earlsferry: I may be wrong but I rather thought that Amendment No. 42 was directed at a slightly different point and not time limits. I thought that it dealt with whether or not someone required to be represented in order to take advantage of the procedure in Clause 14.

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We consider that that procedure should be available to people who are unrepresented, just as it is available for those who are represented. The Scottish Law Commission examined the question as to whether people who were unrepresented could make admissions in terms of what they proposed as their method of proving undisputed facts. The commission concluded that in principle it was proper for that to be available and it stated:

    "In principle it may seem inconsistent to impose a requirement of legal representation in any procedure for formal admission of facts when an unrepresented accused is entitled to plead guilty and thus make the most comprehensive admission of all".

As a matter of principle, that is correct. Nevertheless, one can see that when someone is unrepresented special circumstances may arise. The Committee will have noticed that under Clause 14 (3) the court may allow a late service of the relevant notice in special circumstances.

As a further safeguard, under Clause 14 (6), the court,

    "may, on the application of any party, where it is satisfied that there are special circumstances ... direct that the presumptions ... shall not apply".

We believe that that provides the necessary safeguards so that even where someone is not represented it is proper for that machinery to be used.

The noble Lord referred in broad outline to many amendments which the Law Society of Scotland proposed in connection with time limits. That matter has been carefully considered and it seems to us that although the time limits are demanding, nevertheless they can be fulfilled. The whole object is to ensure that so far as possible matters are considered promptly by both sides and that relevant agreements are reached. Therefore, we think that the time limits are appropriate.

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