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Lord Macaulay of Bragar: In making the observations that I did in formally moving Amendment No. 42, I was trying to be helpful to the Committee rather than taking up its time. A basic principle is involved and the noble and learned Lord has answered the question raised by the amendments. Again, the answer will no doubt be noted by the Law Society of Scotland which will have an opportunity to come back at Report stage if it wishes. In those circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 43 to 47 not moved.]

Clause 14 agreed to.

9.45 p.m.

Clause 15 [Evidence of biological material]:

Lord Macaulay of Bragar moved Amendment No. 48:


Page 11, line 11, leave out ("shall") and insert ("may").

The noble Lord said: This is one amendment that I did not mention in my "omnibus" approach to the Bill a short time ago. The amendment inserts the word "may" instead of "shall" in Clause 15. Again, the proposal comes from the Law Society. The effect of the amendment would be to allow discretion on the part of

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the court as to whether evidence of biological material shall be admissible notwithstanding that neither the material nor a sample is lodged in court.

The rationale behind the amendment is that it is always up to the court to decide on the question of fairness. Accordingly, putting in the word "may" instead of "shall" would build into the statute the question of judicial discretion rather than a mandatory obligation upon the court by the use of the word "shall". "May" leaves it open to the court to exercise its discretion. I beg to move.

Lord Rodger of Earlsferry: The general principle behind this provision and the reason for bringing it forward is that there are particular difficulties associated with evidence in respect of biological material. The material itself may have no visual characteristics which would enable it to be distinguished from other material of similar appearance. It may in particular—this is particularly true nowadays—be a health hazard, or in some other cases the whole sample may be used up in the process of analysis. What is important about a biological sample is not the material itself but its chemical characteristics and composition.

There have been cases in which certain judges have sought to exclude evidence about biological material because the material itself has not been produced. It has not been possible to have this matter dealt with by the appeal court; therefore, the Crown has always been placed in a position of uncertainty as to whether or not the material is required, whether or not it has to be retained, or whether or not it has to be brought to court or otherwise made available.

In these circumstances, the clause seeks to put the matter beyond doubt and say that the court should not be able to refuse to consider evidence concerning biological material solely on the basis that such material is not produced. The trouble if the word "may" were introduced is that one would in effect be going back to square one and leaving the position uncertain. It is in order to have certainty that we have set out the provision in the way we have. It seems to us that the matter is appropriately dealt with in this way. Noble Lords will note that it is restricted to evidence as to the characteristics and composition of any biological material. The production of the material itself, just visually for the jury in that situation, does not have any relevance: it is the analysis that will be of importance. For that reason we suggest that this is an appropriate provision.

Lord Macaulay of Bragar: I am grateful to the noble and learned Lord the Lord Advocate for that explanation. The point does not rise directly out of the amendment, but I wonder if he will consider between now and Report stage whether there should be some built-in provision that, where it is anticipated that the material will be destroyed in the course of analysis, the defence should be informed of that fact so that the defence can be represented at the actual analysis of the material. It has happened in one or two cases. Certainly, in a case in which I was involved the production disappeared in the course of analysis and there was nothing left for the court to consider. The jury was left

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merely with the scientist's evidence, for that was what it was. If I remember rightly, it was a canister of CS gas. The policeman, who did not take kindly to my cross-examination, invited me to attend the analysis of another production he had. It was an atom bomb. He said I was very welcome to attend the destruction of the material. That was perhaps taking things a bit far in the heat of the courtroom.

In the meantime, having made these probably useless observations at this time of night, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 15 agreed to.

Clause 16 [Routine evidence]:

[Amendments Nos. 49 to 51 not moved.]

Clause 16 agreed to.

Clause 17 agreed to.

Clause 18 [Evidence of criminal record and character of accused]:

The Deputy Chairman of Committees: Before calling Amendment No. 52, I must tell the Committee that if the amendment is agreed to, I cannot call Amendments Nos. 53 and 54.

Lord McCluskey moved Amendment No. 52:


Page 13, line 23, leave out from ("prosecution") to end of line 24.

The noble and learned Lord said: We have a whole series of amendments which relate to Clause 18. The Committee will observe that I have given notice of my intention to oppose the Question that Clause 18 stand part of the Bill. It will be appreciated by the noble and learned Lord the Lord Advocate that one or two of the amendments are of a technical character and I do not propose to take up the time of the Committee with them. I have brought them to the attention of the noble and learned Lord the Lord Advocate and his draftsman and they can consider whether there is any merit in them.

The amendments I have tabled for page 13, line 23, of the Bill raise the point of principle I want to make. It is that in this country, both south of the Border and in Scotland, previous convictions of an accused person are relevant only in so far as they bear upon the credibility, reliability and character of that person as a witness. I understand that that has always been the basic principle in Scots law.

The reason why I seek in Amendment No. 54 at page 13, line 24, to leave out "complainer" and insert "person" is that a person who is deceased cannot be a witness. There are other suggestions such as that there might be a deceased complainer, which is not a concept that makes much sense to me.

A giant step is being taken here away from established principle. I want to know the justification for it. I want to know that from the noble and learned Lord the Lord Advocate who proposed this provision and I want to know what the Scottish Law Commission says about it. Have the judges been consulted?

The character of an accused person is not a relevant consideration in determining whether or not he did the acts with which he is charged as criminal offences. That

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has always been so. There has been an exception to that principle: namely, if he attacks the credibility and reliability of witnesses on the ground of their character and seeks to illustrate it by reference to their previous convictions. The principle then is that what is sauce for the goose is sauce for the gander. If he says that witnesses are not to be believed because they have previous convictions, then, when he himself comes to give evidence, the prosecutor is entitled to say, "You are not to be believed either because you, too, have previous convictions."

So he deliberately puts his character in issue. It makes perfectly good sense if he gives evidence because his character and quality as a witness should be compared with the character and quality of other witnesses on an equal footing. But if he is not a witness—this is at the heart of the particular clause—what possible relevance can his previous convictions have to the determination of whether or not he committed the acts. His credibility as a witness is not in issue. What is the possible relevance of it?

The answer may be that nowadays in certain circumstances an accused person, without going into the witness box, can in effect put evidence before the jury, through judicial examination, a voluntary statement or in statements made to the police at the time of the examination. If one wants to meet that situation, then let us confine the exception to the principle by restricting it to that situation.

I am very concerned that we are taking a real step—not just a small step—towards the situation that is becoming common in the United States, the so-called "truth in evidence provisions" I mentioned earlier; namely, that the prosecution puts before the jury in a criminal trial the previous convictions of the accused person, his general character, his relations with his girl friend, his relations with his children, if any, his truancy rate at school and everything else. The view is that the whole man must be presented to the jury in determining whether or not he committed a specific criminal act. That is a disastrous and unprincipled step and this too is an unprincipled step to take.

I ask the Committee to consider carefully whether the Government should be encouraged to take this step. I urge the Lord Advocate to consider what I say. Will he accept that he is making a substantial change in the law in this regard? If so, can he explain the need for it and what support he has for it from independent bodies? I beg to move.


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