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Lord Macaulay of Bragar: I support to some extent the observations made by the noble and learned Lord, Lord McCluskey, on this clause of the Bill. I tabled a series of amendments on this clause which I do not intend to move; I want to take a closer look at it, having heard what the noble and learned Lord said.
Does that mean a personal attack upon the advocate depute or the procurator fiscal conducting the trial? I read the notes on clauses which the noble and learned Lord kindly sent to me and I know that it arises in those notes on clauses. However, I have difficulty in understanding what it means. That is one reason why my amendments to Clause 18 will be delayed until a later stage of the proceedings and I have heard what the noble and learned Lord the Lord Advocate says.
As I said, to some extent I support what was said by the noble and learned Lord, Lord McCluskey. I can see the reasons behind the amendment in that an accused person may try to destroy the Crown case by a backdoor method and by not giving evidence himself. If I understand the import of the new clause, I believe that that is what it is striking at. However, I shall listen with interest to what the noble and learned Lord the Lord Advocate says on this matter.
The Earl of Mar and Kellie: I support the amendment. I am concerned about the possibility of misuse of this clause allowing disclosure of a previous criminal record. As it stands, I do not believe that it will positively contribute to the decision-making process of the trial. No juror would find it helpful to know of the accused's previous record, bearing in mind the phrase, "Round up the usual suspects", which must be part of the tactics of an investigation. Scotland needs a guarantee of sound convictions.
Lord Rodger of Earlsferry: The noble and learned Lord, Lord McCluskey, produces a number of amendments which go to the drafting of specific matters. As I shall indicate in a moment, we shall certainly be looking at the drafting of this clause. But much more fundamentally, he raised the question of the matter of principle.
We see this provision as a logical development of the position which has obtained in our law for over a century. Section 160(2) of the Criminal Procedure (Scotland) Act 1975 is the current embodiment of a provision which goes back to Section 67 of the Criminal Procedure (Scotland) Act of 1887. By that subsection Parliament has provided, and I read short, that the prosecutor may lay evidence of the accused's previous convictions before the jury where the accused shall lead evidence to prove previous good character. That provision has nothing whatever to do with the situation under Section 141, to which the noble and learned Lord spoke, which arises where the accused gives evidence. Section 141(f) deals with the questions which an accused may be asked. That provides that he cannot be asked about previous convictions in broad terms unless he has fulfilled the qualifying conditions.
Section 160(2) has nothing to do with that but deals with the leading of evidence. The matters are quite distinct. That is not only plain on the face of the statute, but it is plain also from the fact that the provision came into our law in 1887, 11 years before the Criminal Evidence Act 1898 which first allowed accused persons to give evidence and which contained the original version of Section 141 for our law.
The provisions in Clause 18 which cover the leading of evidence with a view to establishing an accused's good character really do no more than re-enact what is already specifically covered by Section 160(2) of the 1975 Act. Indeed, it will be for consideration whether some consequential amendment of that section may be appropriate. All that we have done therefore is to build on that approach by adopting the general policy which is already enshrined in Section 141 and so allowing the prosecutor to lead evidence not only if the defence leads evidence or asks questions with a view to showing he is of good character, but also if he does so with a view to impugning the character of the prosecutor and so on.
The principle already enshrined in subsection (2) of Section 160 and developed in the Bill seems sound. It is surely wrong that if the defence decides, as a matter of tactics, to present the jury with a picture of the accused as a man of good character, or to bring out the faults of various witnesses or of a deceased person, the jury should be left with a one-sided picture. If they are to hear of these factors so far as regards one side, then at least in some cases it would seem appropriate that they should hear of them also so far as they affect the accused. Otherwise there is a risk that they are being asked to reach their verdict on a false and essentially distorted basis. I submit that that cannot be right.
Nonetheless I have listened very carefully to what has been said by your Lordships on these matters and I can perhaps indicate the position along these lines. The Government have already identified the need for an amendment to be introduced to cover the position of attacks on the character of deceased persons in Section 141 of the 1975 Act. That has been omitted by error and an amendment will have to be brought forward at the Report stage. Secondly, as noble Lords who are familiar with our system are aware, under the decision of the High Court in Leggat the prosecutor needs the permission of the court before evidence of character and so on can be adduced and questions can be asked under Section 141. It seems desirable that that matter, which is not dealt with specifically on the face of the statute at the moment, should be made clear and an amendment to that effect will be brought forward.
Given that that is the approach in Section 141, then it seems to us also that it would be proper to provide for the prosecutor to apply for permission before he may introduce evidence in the terms envisaged by Clause 18. At the present moment it is not required in terms of Section 160(2); but it seems to me that it will be proper that it should be so because, as experience has shown in connection with Section 141, there is a need for giving some measure of control in these matters so that there is no risk of what is designed to be something which will lead to a more just position, being abused. There will be a degree of control.
The noble Lord, Lord Macaulay, drew attention to the words regarding the attack on the character of the prosecutor. Those words have been taken from the corresponding provision in Section 141(IF). That particular subsection has been operating for a number of years. In the light of that explanation, and with the
Lord Macaulay of Bragar: Before the noble and learned Lord sits down, perhaps I may refer to the fact that I raised a question as to what the phrase means. I am not sure whether he has given an answer. How will it be exercised in practice? What direction is given to procurators fiscal as to how to interpret the section? It is a rather puzzling piece of phraseology.
Lord Rodger of Earlsferry: As the noble Lord says, it is a slightly puzzling matter, and it is one which one might look at. One of the reasons why we copied the words from the present legislation is that it corresponds to the existing language. I have a suspicion that that language may to some extent owe its origins to the fact that this is a provision which is common for England and Scotland. It may have been more appropriate as regards prosecutors in England rather than Scotland. I am not quite sure about that matter. It is established legislative language.
Lord McCluskey: I am rather surprised at the Lord Advocate's answer to what I have said and his reference to Section 67 and Section 160(2) of the 1987 Act. I thought that I must have missed something. If he tended to take a logical development of Section 160(2), I am surprised that he should put the provision in beside Section 141. That is why I rushed to check the Notes on Clauses. I find no hint of Section 160(2). I believe that it is a rationalisation which has been put in at the last moment.
Obviously, if the accused says, "I lead evidence of my previous good character" the prosecution must be able to lead evidence of his previous convictions to show that he is not of previous good character. It has nothing whatever to do with what has been put in here. What has been put in beside Section 141 is something to blacken the accused simply because he attempts to show that the reliability of the evidence should be impugned on the basis that I have suggested.
I hope that the noble and learned Lord will think further about this matter. He said in terms that more amendments are coming. In particular, he has referred to the leave of the court. That might be an important safeguard. I shall keep my powder dry and withdraw this amendment.