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Lord McCluskey: I wonder whether I may comment on this point as I have already done so on Second Reading. First, I am satisfied that, contrary to what the Committee heard from the noble Lord, Lord Stodart, there is absolutely no need to restate the law on this matter in Scotland. It is abundantly plain that the jury is not entitled to regard the failure of the accused to go into the witness box as being of any evidential value whatsoever. We do not need to be told that and, in a sense, the law being abundantly plain, it would be almost an impertinence on the part of Parliament to tell us what the law is.

In the press and other quarters there has been considerable misunderstanding about what is happening in this Bill. I sit as a trial judge for approximately 12 to 14 weeks of the year. I have been appearing in the criminal courts for something in the order of 40 years, some 12 years as a prosecutor and other years for the defence. What commonly happens is that, if the accused does not choose to exercise his right to give evidence and chooses to exercise his right not to give evidence, his defence counsel will comment upon that matter when he addresses the jury. He will commonly say, "Ladies and gentlemen, you have heard the evidence for the Crown. The burden of proof is on the Crown. There is no burden upon my client and that is why, on my advice, he has not gone into the witness box". So comment is in fact made by the defence.

Secondly, as the Committee recognised, comment can be made by the judge. From time to time judges do comment but they must do so with restraint, which is only right and proper. I do not doubt that, having regard to the fact that this clause simply removes a part of the 1975 Act, the courts will interpret the duty of the prosecutor as a duty to comment with at least as much restraint as the judges are wont to exercise at the present time. I do not have the slightest shadow of doubt about that.

In what circumstances should the prosecutor have the right and responsibility to comment upon the accused not entering the witness box? I referred to that point at Second Reading. I want simply to make the point that almost from the first or second witness in the trial the jury is waiting to hear the accused's account of the matter. That is what the jurors want to hear. They have heard the case against him which has built up and up and they want to hear his explanation and how he will get out of accusation. Then the accused does not go into the witness box. It is deeply patronising to suppose that unless the prosecutor refers to the matter the jury will

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not have noticed. Of course the jury will have noticed. In my respectful view, the prosecutor has a perfect right to point out that matter if it is obvious.

Let us take the classic type of case where witnesses have given evidence that the accused was at place A and the accused has lodged a formal written alibi which is read to the jury at the beginning of the case saying, "I was not at place A at the time specified. I was at place B". Then the evidence of the witnesses who say that they saw him at place A is challenged by his counsel. One would have thought that the natural consequence of that would be that he would go into the witness box and say, "I was in fact at place B and therefore they are wrong". If his counsel, in reliance upon his client's private statement to him, has challenged the evidence of witnesses, it seems to me to be perfectly right and proper that the prosecutor will say, "Ladies and gentlemen, in looking at the evidence of X and Y you will recall that that evidence was challenged by counsel on behalf of the accused person. But you have no evidence to set against that, and in particular the person who could have said, 'I was there', and could have told you what he was doing has chosen not to give evidence. So when you come to assess their evidence you will be entitled to take that fact into account". As a judge, I would say that. I do not see why a prosecutor should be inhibited from saying what a judge would certainly say in those circumstances.

I want to emphasise the point that I made earlier. In more cases than not when an accused person does not give evidence it is common for defence counsel to refer to that fact in his closing speech. Indeed, it is that reference which commonly prompts me, as the judge, to make a further comment on the matter, knowing that by that stage the prosecutor has no right of reply or possibility of commenting on the comment made by defence counsel. Those are the reasons why I believe that the proposals in the Bill are sound and those contained in the amendment are unsound.

There is one very special point of principle to which I want to draw attention. The amendment concludes with the words:


    "and the presiding Judge shall instruct the Jury accordingly".

That is an obnoxious provision. Parliament should not be instructing judges of the High Court on what they must say to juries. To include in an Act of Parliament a provision that the presiding judge "shall instruct the Jury" in certain terms appears to me to be wholly obnoxious and contrary to our traditions. For those reasons I oppose the amendment and will support the clause.

3.30 p.m.

Lord Hutchinson of Lullington: As a member of the English Bar, perhaps I might make a contribution on this matter. As a member of the English Bar I fought extremely hard to try and stop Mr. Howard's first act of vandalism; that is, abolishing the right of silence in the English and Welsh courts, as has happened.

I listened to the noble Lord the "Scottish peasant" with the greatest possible admiration. What he said makes the crucial point. Equally, I ask the Minister,

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before the Committee makes up its mind about the amendment, to answer the question in a slightly different form. In the clause what does,


    "comment on failure of accused to give evidence",

mean? What is the "comment" that is envisaged? I was astonished to hear the observations fall from the lips of the noble and learned Lord, Lord McCluskey, who, if I may say so, was one of my great heroes in this Chamber in the old days. He says, with his knowledge of Scottish law, that there is no need to tell the jury that silence on behalf of the defendant has no evidential value whatever so far as concerns the Crown. If that is so, what is the point of the prosecutor making any comment?

The prosecutor comments upon the defendant's exercise of his right in law to be silent for a purpose. What is that purpose? That is what I ask the Minister to explain to the Committee. The only possible purpose that I can see is to say to the jury, "My duty as a prosecutor is to lay the evidence before you, to prove to your satisfaction that this defendant is guilty beyond reasonable doubt. If any of you still has a doubt, then you may take into account the fact that he has exercised his right and not gone into the witness box. By taking that into account you will add to the prosecution evidence which at the moment leaves you in some doubt. The fact that he has not gone into the witness box means that you can add to the scales of justice so that they sink on the side of conviction".

Is that the comment which prosecuting counsel will now be allowed to make in Scotland when a defendant exercises his right not to go into the witness box? If it is, then what the noble and learned Lord said about it having no evidential value is simply not so. To make a comment of that kind is to ask the jury to give the silence some evidential value; that is, to add it to the prosecution case. It is that which surely is the mischief. That is why both Royal Commissions in England pointed out that that was the mischief. To allow comment to be made by prosecuting counsel is simply to state that silence can amount to evidence; that the defendant can produce evidence against himself. The whole basis of criminal law, both in Scotland and in England, is that no defendant should ever be put in that position.

I want to ask the Minister one other question. I know that he will not avoid it as a number of his colleagues have done in the past. What happens if the silence of the accused is due not to guilt, but to some perfectly reasonable other reason? I say to the Minister—equalling the experience of the noble and learned Lord, Lord McCluskey, of 40 years' practice in the criminal courts—that in a large number of cases accused people do not wish to go into the witness box. They say to their advocate, "I do not want to go into the witness box", for all kinds of reasons which have nothing to do with their guilt.

In many cases a defendant may not wish to give evidence simply through fear. He may say, "I cannot face it. I have complete faith that the jury will see that the evidence of the Crown is insufficient and acquit me. But I shall not offer myself for cross-examination. I have heard people being cross-examined and I am too frightened to go into the witness box". That is one

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reason a person may not give evidence. Another reason is that he does not want to bring discredit on other people which, if he tells the truth, he will have to do. I refer to discredit of spouses, children and friends. Alibis, as the noble and learned Lord mentioned, may involve bringing discredit on somebody else because that is where the defendant was and he should not have been there. That may bring discredit on the person's character or family and that may be a reason for a defendant not giving evidence.

Another reason—I know that some Members of this Committee will throw up their hands in horror at the thought—is that, unfortunately, on occasions, the police bring charges of an offence against someone who has committed the offence before. Sometimes they back it up with a false admission; sometimes they back it up by planting false evidence on the premises, such as drugs. If that person goes into the witness box and puts forward a defence that the police have done that, then, as Members of the Committee will again know, his previous convictions can be proved against him. The police know that. That person may not be a very admirable person but he did not commit the offence. Yet he is put in the impossible dilemma of either going into the witness box where the prejudice of his previous convictions will be put to him, or remaining where he is and saying, "I am innocent until the case is proved against me; get on and prove it".

Those are some of the reasons why a person may not wish to go into the witness box. Is it right that prosecuting counsel should speculate as to the reason why someone did not give evidence and then suggest to the jury that it is evidence of guilt? It may be absolutely untrue. It is in that way that miscarriages of justice come about. I should like to obtain an answer to those questions from the Minister before deciding whether or not to accept the amendment.


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