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The Deputy Chairman of Committees (Viscount St. Davids): Before I call Amendment No. 53 I should point out that there is a mistake on the Marshalled List. It should read,


Lord McCluskey had given notice of his intention to move Amendment No. 53:

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Page 13, line 23, after ("prosecution") insert ("of").

The noble and learned Lord said: I shall shortly discover what this is about. We are on page 13, line 23. In the circumstances and this amendment being technical in character, I do not propose to move it.

[Amendment No. 53 not moved.]

Lord McCluskey had given notice of his intention to moved Amendment No. 54:


Page 13, line 24, leave out ("complainer") and insert ("person").

The noble and learned Lord said: This is a drafting point as I mentioned earlier. I do not propose to move the amendment.

[Amendment No. 54 not moved.]

[Amendments Nos. 55 to 57 not moved.]

Lord McCluskey had given notice of his intention to move Amendments Nos. 58 and 59:


Page 13, line 44, after ("but") insert ("shall if opposed, be heard").
Page 13, line 45, leave out ("and the public").

The noble and learned Lord said: These amendments deal with a slightly different point, but I shall not trouble your Lordships tonight with either because they will be caught up in the general review of this matter. Therefore, I do not propose to move them.

[Amendments Nos. 58 and 59 not moved.]

[Amendments Nos. 60 to 62 not moved.]

On Question, Whether Clause 18 shall stand part of the Bill?

Lord McCluskey: Having said all that I want to say at this stage on this matter, I do not propose at the moment to oppose the Question that the clause shall stand part of the Bill.

Clause 18 agreed to.

Clause 19 [Evidence as to controlled drugs and medicinal products]:

Lord Macaulay of Bragar had given notice of his intention to move Amendment No. 63:


Page 15, line 7, leave out ("14") and insert ("21").

The noble Lord said: We have already discussed the subject of this amendment—and of Amendments Nos. 64 to 74—at an earlier stage. I do not propose to move the amendment.

[Amendment No. 63 not moved.]

[Amendments Nos. 64 to 66 not moved.]

Clause 19 agreed to.

Clause 20 [Evidence as to time and place of video surveillance recordings]:

[Amendments Nos. 67 to 70 not moved.]

Clause 20 agreed to.

Clause 21 [Evidence in relation to fingerprints]:

[Amendments Nos. 71 to 74 not moved.]

Clause 21 agreed to.

Clause 22 [Evidence in relation to sexual offences]:

Lord Macaulay of Bragar moved Amendment No. 75:


Page 16, leave out lines 24 and 25.

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The noble Lord said: This is a fairly short amendment which restates the offences which cannot be referred to in evidence. It merely restates the crimes involved, the point behind the amendment being that all the offences that are mentioned in Section 2C of the Incest and Related Offences (Scotland) Act 1986 should be included in the Bill by way of amendment. I beg to move.

Lord Rodger of Earlsferry: Amendments Nos. 75 and 76 relate to our amendment to the provisions relating to questioning on previous sexual history. A report on this matter has pointed out, among other things, that it would be desirable to include in the coverage of these matters the possible crime of clandestine injury to women. This amendment would remove that on the perceived basis that such a crime is not prosecuted nowadays. In fact, it is prosecuted and where it is prosecuted, it seems desirable that this provision should apply.

Amendment No. 76 seems to have merit because it may very well be appropriate to include those further offences under the umbrella of this provision. In the circumstances, I am happy to consider this amendment further. In the light of that undertaking, perhaps the noble Lord will withdraw his amendment.

10.15 p.m.

Lord Macaulay of Bragar: I am grateful to the noble and learned Lord for that explanation. The argument which might have been presented, but which I do not present, is that the crime—I believe it is known only in Scotland as a clandestine injury to a woman—might be subsumed within an indecent assault charge, but I shall not go into the technicalities of that at this time of the evening. I am happy to take away the noble and learned Lord's's assurance and co-operation in respect of Amendment No. 76. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 76 not moved.]

Clause 22 agreed to.

Clauses 23 and 24 agreed to.

Lord McCluskey moved Amendment No. 77:


After Clause 24, insert the following new clause:

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("Disqualification of jurors: further provisions

.—(1) In section 134 of the 1975 Act after the word "unfit" shall be inserted the words "or unable".
(2) In section 134 of the 1975 Act after the second use of the word "juror" shall be inserted the words "or that by reason of his lateness, or unexplained absence or apparent inattention he should not continue to serve.".").

The noble and learned Lord said: The Lord Advocate will recognise what I am seeking to do here. The wording of existing Section 134 is rather restrictive. As judges we find from time to time—prosecutors and the defence will find the same—that there are circumstances for which one has not legislated, in a sense, but where it is not satisfactory that a juror should continue to serve as a juror.

I have put down a form of words to provide a peg upon which to hang the argument. Take, for instance, the example I gave earlier of the person who gets on to the jury and turns out to be unfit to serve by reason of the fact that he is dimwitted, does not know his way back to the court and so forth. If such a situation comes to light, one should be able to dispose of that person with the consent of all, or by the judge's ruling in the exercise of his discretion. All I am asking the Lord Advocate to do tonight is to say that he will look at this matter to see whether the old wording requires a little adjustment to allow us a bit more discretion in a simple matter of this kind. I beg to move.

Lord Rodger of Earlsferry: All of us who have to operate the section are aware that there can sometimes be difficulty in fitting precisely the circumstances into the wording as it is. On the basis that the noble and learned Lord has explained, I am happy to use this opportunity to look further at the matter and to come back on Report with an amendment, or with an explanation of why we think the position is satisfactory. I am happy to look at the matter if the noble and learned Lord will withdraw the amendment on this occasion.

Lord McCluskey: I beg leave to withdraw the amendment.

Amendment, by leave withdrawn.

Clause 25 agreed to.

The Earl of Lindsay: I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.

        House adjourned at twenty minutes past ten o'clock.

12 Jan 1995 : Column 397


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