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The Earl of Mar and Kellie: This clause has set alarm bells ringing, and elsewhere there have been many knee-jerk reactions to it. That in itself is no bad thing, as it clearly establishes that an aspect of Scottish legal right is under threat.

At present a judge may comment upon the fact that the accused elected not to give evidence. I understand that it is only 100 years since it was made lawful for the accused to give evidence at all. Evolution can be a slow process. I wonder whether we are going too fast in that direction.

What is proposed in the clause may not be as awful as is suggested. There may be occasions when a prosecutor with a weak case may be deemed to go over the top and create a wrong impression in a jury's mind. I therefore foresee difficulties for the Bench in the summing-up if that happens. I conclude therefore by opposing the inclusion of this provision.

Lord Rodger of Earlsferry: The debate on the amendment brought forward by the noble Lord, Lord Macaulay, has also touched on the substance of the clause itself. The effect of the amendment would be to prohibit a jury taking any account of an accused person's failure to give evidence at his trial, regardless of the circumstances of the case. In replying on this

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matter, I should like to stress, as indeed the noble and learned Lord, Lord McCluskey, has made clear, that under the law of Scotland as it stands at present, and as it has stood since at least 1918, it is open to the judge to make certain comments. There is case-law on that matter. The first point I would stress is that we are not in any way changing the law on the directions a judge may give to the jury.

The noble Lord, Lord Macaulay, read out from the consultation paper a passage dealing with this matter. In that passage the issue was canvassed whether it would be desirable to put this area of the law into a statutory formulation. We received a very clear reply on consultation that that was neither necessary nor was it desirable. As it stands at present, and as it has been developed by the courts, the law looks to the common sense of the matter, to which the noble and learned Lord, Lord McCluskey, has drawn attention, which is that juries do notice whether accused persons give evidence. At present the position is that the court may, in special circumstances and acting at all times with restraint, make a comment on the absence of evidence from the accused. The comment is given in a case where the Crown has brought forward evidence which, as it was put in a recent case, is crying out for an explanation and where in the face of that evidence there is no evidence from the accused giving an explanation when he is the one person who could give an innocent explanation. In that situation, as the law stands at present—this is as far as it goes—the judge is entitled to say to the jury that they may find it easier to draw a guilty inference from the facts or from the evidence which the jury is considering; in other words, from the facts or from the evidence put forward and proved, let us suppose in this hypothesis, by the prosecution. That is the law as it stands at present, and there is no intention on our part to change that law. All the clause seeks to do is to allow the prosecutor to make a comment, or, more precisely, to withdraw the statutory bar on the prosecutor making a comment.

I would say, just as the noble and learned Lord, Lord McCluskey, said, that the prosecutor will comment only with restraint because of course he must have regard to the fact that as the law has been laid down it is only with restraint that this can be said to a jury, and it is only in special circumstances that it can be said. If he goes further than that, if he says something which goes beyond that, it will be the judge's duty to correct what the prosecutor has said and to give the proper direction to the jury. If he should fail to do so, or, in certain circumstances, if the appeal court thought that what was said by the prosecutor was so outrageous, then presumably the matter could be the basis for a ground of appeal. Where the law itself only allows comments with restraint, and only for inferences to be drawn in narrow circumstances, it would be a foolish prosecutor indeed who went further than that.

Why are we doing this? Where it is open to the judge in an appropriate case to give this direction to the jury, it seems proper, with respect to those who argue the reverse, that that matter should be focused in the prosecution speech so that the prosecutor can invite the jury to consider that in the circumstances they may find

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it easier to draw the inference of guilt. When that is said, it means that the issue is fairly in play and then it is open to the defence counsel, who, as the noble and learned Lord, Lord McCluskey, said, almost invariably in these circumstances mentions the fact that his client has not given evidence, to say to the jury that they have heard what the prosecutor has said and that it is either right or that it is not the kind of case where they would be wise to draw that inference. The matter is then fairly in play and the judge in those circumstances can give the appropriate direction. Where the judge can give that direction, and where the defence is in no position to comment at that stage when the judge gives the direction, it seems better that the matter should be fairly in front of the jury at a proper stage when the prosecution is speaking and therefore the matter can be dealt with in the normal way, as any other issue is dealt with, between the parties in the prosecution. For that reason we think it is appropriate to deal with the issue in this way. I would add that in this issue we can claim the support of the Thomson Committee, which reported on criminal procedure in Scotland and which recommended the repeal of this statutory bar.

The noble Lord, Lord Hutchinson, said that there may be many reasons why an accused person does not give evidence. I accept that. But at present under our law in Scotland, whatever the reasons may be why someone has not given evidence, the fact of the matter is that the judge may, in an appropriate case and with restraint, invite the jury to draw the inference which I have indicated. Therefore, we are not changing that matter in any sense.

In my submission, the change which we are advocating here is a proper one. It does not go so far as some of the other changes which have been introduced elsewhere. It is entirely in accordance with the spirit of the law in Scotland. I commend it to the Committee.

Lord Hutchinson of Lullington: Before the Minister finishes his address, perhaps I may ask him to focus his mind for a moment on the distinction between a judge, who is subject to the control of the Court of Appeal in his summing up and so on, and the advocate appearing for the prosecution. At the moment, according to what the Minister has said, the advocate has to decide whether the case is one which is crying out for an explanation. That is the first thing he has to decide. Secondly, he has to tell the jury that they may find it easier to draw an inference of guilt. Thirdly, he has to act with restraint. Will the Minister explain how any lawyer can possibly know what he is doing? Those three requisites are totally without definition. The Minister has not answered this question: is it correct that the prosecutor can say to the jury, "You may add evidence; you may resolve your doubt by the fact that there has been silence"?

Lord Rodger of Earlsferry: Despite what the noble Lord says, I do not believe that there will be difficulty in identifying the kinds of cases where it would be appropriate to invite the jury to draw the kind of inference which I have suggested. The noble and learned Lord, Lord McCluskey, has had to deal with such cases

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as a trial judge and I do not understand that he has had particular difficulty in identifying those cases where, in accordance with the spirit of the law as it has been laid down, such a direction should be given.

It is appropriate where a judge may invite a jury to draw such an inference, that in presenting his case to the jury the prosecutor may put the matter in the way that I have suggested. He is not adding to the evidence at all but simply saying what seems to me to be a matter of common sense; namely, that when considering whether it is legitimate to draw the kind of inference which the prosecution is inviting should be drawn from the facts which have been proved, the jury may find it easier to draw that inference if it has not been presented with a competing explanation in evidence from the accused. If that has to be considered it is obvious that the jury may find it more difficult to draw the appropriate inference. That is all that this direction says, but in its absence it may be easier to draw the inference of guilt.

Lord McCluskey: I would regret very much if I were to lose the esteem which the noble Lord, Lord Hutchinson of Lullington, mentioned. As a precaution against being accused of inconsistency I wrote a book on the matter and I have it here. It was published some years ago. I read from chapter 7, paragraph 14:

    "The prosecutor's conduct may afford a good ground of appeal".

I cannot believe that the Criminal Appeal Court in Scotland, which would strike down a judge's charge on the ground that his comment was excessive, would fail to do so if the prosecutor was guilty of the same excessive comment. It simply cannot be.

I believe that English lawyers are dealing with an entirely different situation from the one which faces the Scots. There are two important matters. First, since 1980, developing a system which has obtained in Scotland for centuries, the accused person is now brought before the sheriff usually within 72 hours of his arrest. He is examined on judicial examination. He has a right to remain silent which he may or may not do.

Secondly, nowadays almost all accused persons are interviewed in tape recorded conditions by the police. Again, the accused's right to remain silent is explained to him. If an accused person chooses on either or both these occasions to state things which go towards exculpating him, it has become the law in Scotland over the past 10 years—if it were not so before—that that statement by him can be founded as evidence of his innocence without his going into the witness box. That may strike English lawyers as slightly anomalous, but that is the situation. Accordingly, without going into the witness box, a person can have his evidence—for example, as regards an alibi or in relation to any other circumstance crying out for explanation—put before the jury in that form.

In those circumstances, the judge is obliged to say to the jury, "Ladies and gentlemen, in considering the evidence in this case, part of it consists of what the accused told the police and another part consists of what he told the prosecutor or the sheriff at the judicial examination". But neither the prosecutor, the police nor the sheriff at the judicial examination, have the right to

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cross-examine the man. Therefore it seems entirely proper and logical that in addressing the jury, the prosecutor can say, "Ladies and gentlemen, you must of course take into account the evidence of what was said to the police and what was said at the judicial examination, but do bear in mind that the accused was sitting there unable to be cross-examined. He has chosen not to go into the witness box and be cross-examined on these matters". It is extremely important that the prosecutor should have that right in the circumstances which have developed.

The noble Lord, Lord Hutchinson of Lullington, suggested that inevitably there must be an addition to the evidence if a comment of that kind is made. It must have evidential value. I dispute that. The position is that a comment does not add to the evidence at all. For example, in assessing whether there is corroborative evidence in Scottish law one would not add anything from the silence of the accused or the comment thereon.

But if the credibility of a witness has been attacked by the accused's counsel, as in the example which I gave before, it would be a sensible comment to say, "Why has the accused not chosen to go into the witness box and back up this attack with his own evidence?"

There is another example of the person who has given a statement in court and a previous contradictory statement. It is a perfectly legitimate comment to say, in assessing the reliability and credibility of a witness, "Look at the fact that on a previous occasion he said something different". That does not add to the evidence, but it is a legitimate comment of a kind which no doubt the noble Lord is familiar with in the English courts.

The final point is this: it is not just the judge who can comment on the accused not entering the witness box. It is not just his defence counsel, but all the other defence counsel. If any defence counsel lodges a defence of incrimination, that is to say, "My client says that he did not do it but the other fellow did", in his address to the jury defence counsel is perfectly entitled to say, "He did not give evidence". Therefore, everybody in court can comment on the accused's silence other than the prosecutor. That does not seem to me to be right.

Perhaps I may refer to another case within my experience. It commonly happens that when a man and woman are charged jointly with the murder of a child in their sole care or where there are two survivors of a battle in which the third has died, that one of the two accused persons goes into the witness box and explains his part in the affair and the other remains silent. It is nonsense to suggest that that is not a matter worthy of comment as regards the jury. I see that as no part of the invasion of the right of silence as I understand it and which is explained very fully in the speech by the noble and learned Lord, Lord Mustill, to which I referred on the first day of the Committee stage on Thursday, 12th January. The noble and learned Lord will no doubt find it in the appropriate column of the Official Report.

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