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Lord Rodger of Earlsferry: As I indicated, in preparing this legislation we consulted on a number of issues dealing with juries. One of the matters concerned whether the simple majority verdict should be retained. We were, of course, aware that retention had been recommended by the Thomson Committee in the circumstances alluded to by the noble and learned Lord, Lord McCluskey, and that has happened. It is true to say that we also consulted particularly having regard to the question of the possible abolition of the not proven verdict. Nonetheless, the result of the consultation was that two thirds of those who replied supported the retention of the simple majority verdict. We took that into account.

The noble Lord, Lord Macaulay, suggested that by introducing a provision for a qualified majority of this kind one would give greater protection to innocent persons. However, we already have built into our system the possible extra protection of the not proven verdict.

With all respect to the noble Lord, Lord Macaulay, he slightly simplified the position in England. As the noble and learned Lord, Lord McCluskey, said, one has to look at the position as a whole. In England the position is rather different. In particular, before any verdict can be returned 10 people have to vote for it. Under the noble Lord's amendment there could be a situation in which as many as nine people were in favour of a verdict of guilty and six against, but nonetheless a verdict of acquittal would have to be brought in. That seems to me to be likely to cause real difficulties. Because of that kind of difficulty, in England in order for a not guilty verdict to be returned one has to have 10 in favour. That immediately gives rise to the possibility—which we know occurs in practice—of hung juries and the need for retrials with all the difficulties which those entail.

Therefore, any reform would have to go much further than that proposed by the noble Lord. We see great disadvantages in the possibility of hung juries and retrials. Therefore, those point against a change. Before we felt that a change was desirable or called for we would have to be satisfied that there was a real problem to be tackled. As I said, our consultation indicated that

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people were satisfied with the system which we now have, including the not proven verdict. Therefore, I cannot accept the noble Lord's amendment.

Lord Macaulay of Bragar: I am obliged to the noble and learned Lord. The fact that the public do not regard a majority verdict as being disadvantageous is perhaps also a simplification. It raises the question of who were the members of the public who replied to the consultation paper. Practitioners and bodies dealing with victims, and so on, reply to consultations. In general the public who are involved are people who have unfortunately become involved in the court process during their lives. Those are the people who know what they are talking about because they have been involved in the practical exercise of this matter, particularly those who are languishing in prison.

The noble and learned Lord said that one could have nine jurors in favour of a guilty verdict and six against. I say, so what? I do not suggest for a moment that we should follow the English system, but the amendment proposes that for a verdict of guilty the Crown must persuade 10 people out of 15. I suggest that that is not an unreasonable burden to place upon the Crown, which after all brings the charges against members of the public in the first place. However, having heard the reply of the noble and learned Lord, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Earl of Mar and Kellie moved Amendment No. 81:

Before Clause 27, insert the following new clause:

("Effect of offence on victims

. After each of sections 217 and 430 of the 1975 Act there shall be inserted the following section as, respectively, section 217A and section 430A—
"Effect of offence on victims

. Before determining what sentence to pass on, or what other disposal or order to make in relation to, an offender the court shall have before it a report concerning the effect of the offence on the victim or victims.".").

The noble Earl said: I spoke to the amendment last Thursday when it was subsequently decided not to debate it at that time. Members of the Committee will have noted the similarity between the amendment and Amendment No. 86 tabled by the noble and learned Lord, Lord McCluskey.

I remind the Committee that the purpose of the amendment is that a statement about the effect of the offence on the victim should be made available to the court before proceeding to pass sentence. That would have two useful outcomes. First, it would enhance the balance of care for the victim. Secondly, it would be a useful starting point for the social work process for any offender placed under an order by the court. I beg to move.

Lord McCluskey: The new clause proposed by the noble Earl is grouped with the amendment which I propose. Amendment No. 84 mentions a victim impact statement as defined in Section 217B(2) of the 1975 Act, and Amendment No. 86 creates that Section 217B. The

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amendment is made to the existing Clause 27 of the Bill, which in turn introduces a new section into the 1975 Act which provides that

    "In determining what sentence to pass on, or what other disposal or order to make in relation to, an offender who has pleaded guilty to an offence",

a court may take into account certain matters. I propose to add that one of the matters to be taken into account is a victim impact statement as defined in the proposed new section.

My purpose in putting down the amendments is to draw attention to the role of the victim in serious criminal proceedings in Scotland. I acknowledge at once that the wording of the amendments is not ideal, but my intention is not to seek to amend the Bill, and certainly not today. It is to enable us to consider the position of the victim in serious cases where there is an identifiable victim, because in some cases there is not.

I want to emphasise certain points at the outset. I shall address myself to the most serious cases only—those which are dealt with on solemn procedure in Scotland; namely, the jury cases. That is not clear from the amendments as drafted by me, and I apologise for that. That was my intention.

I recognise that it would be extremely expensive and administratively overwhelming to require victim impact statements in every single case, certainly at the beginning. Accordingly, I do not propose that at this stage. I also confine my proposals, as the amendments make clear, to assault cases, including assault cases resulting in death, whether that is described as murder or culpable homicide, to robbery cases and to sexual offences which are listed in Section 141A(2) of the existing Act.

The next point I want to emphasise is that my proposals relate to that stage in the criminal proceedings when it has been established, first, that a crime has been committed; secondly, that an identifiable and identified accused person has been found guilty of committing the crime; and, thirdly, that a person or persons has or have been shown to be victims of the crime of which another person has then been found guilty. I do not think it is right to use the term "victim" in an enactment dealing with criminal procedure before the stage has been reached at which a conviction has been recorded.

Even in that context it is not easy to define the victim, even in a case where the crime has resulted in the death of a person. Therefore, I recognise that my proposed subsection (4) is not the perfect answer to the difficulty, but I believe that a workable definition could be found by Ministers together with parliamentary draftsmen.

What is a victim impact statement in this context? Amendment No. 86 seeks to make the position clear. There are many possibilities. First, the victim may make an oral statement in court. That is the system which obtains in more than 40 states of the United States; it is widespread. I am wholly opposed to that idea; I am not in favour of it. I cannot emphasise that too strongly. The reason is that the situation would be far too emotional for everyone involved. It might be far too traumatic for the victim. It would also be an entirely uncontrolled situation. If one allows the victim to stand up in court, the victim should not be allowed to introduce material

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which should not be before the court. Judicial criminal proceedings should not be conducted in a highly emotional atmosphere. They are intended to produce a just result and a balanced disposal. One could not stop the victim from making new, unsubstantiated allegations, introducing hearsay, perhaps in an extreme case introducing abuse, and making theatrical gestures of one kind or another in highly emotional language.

Perhaps I may illustrate the point. In 1994 in a recent case in the United States the murder victim's widow was allowed to make an address to the judge, as she was entitled to do under the Victims' Bill of Rights. In the course of that address she turned to the accused person, by this time convicted, and in front of many television cameras said, "You are here. My husband is also here", and produced his ashes and dumped them down in front of the person convicted of the murder. That seems to be a monstrous way to allow court proceedings to be conducted. However, it seems inevitably built into the situation where one allows the victim to appear.

I see no place in our procedure for such behaviour. I reject entirely the notion of an oral statement. That is why the clause that I have drafted, imperfect though it is, fairly clearly states that the statement shall be a written statement,

    "prepared by a legally qualified member of the procurator fiscal service and signed or otherwise authenticated by the victim",

as defined in the subsection. I emphasise that point. In this Committee we have repeatedly noted that in Scotland the public prosecutor—whether it be the Lord Advocate, one of his deputes or a member of the fiscal service—is exercising a role as a public servant, a Minister of Justice, whose duty it is to place all the relevant material before the court. I envisage him as participating in this exercise in that capacity.

What information should the victim impact statement contain? There are a number of heads in subsection (2) of the clause that I have drafted. They include:

    "(i) The personal details of the victim, including his relationship (if any) to the offender, (ii) the physical, emotional and mental consequences to the victim of the offence, (iii) the financial or other patrimonial consequences to the victim of the offence".

I acknowledge that that is largely undertaken now. Some might ask: if that is done now, why is the provision necessary? The crucial difference—I urge the Committee to recognise it—is that the victim will have helped to prepare the statement. The victim will have authenticated it and therefore the victim becomes involved in the criminal justice process. However, even if the victim impact statement contained nothing further than the matters listed in paragraphs (i) to (iii), I believe that that would achieve something. The victim would be able to feel that he or she had had an opportunity to play a real part in placing before the court all the relevant facts. Accordingly, at this stage, apart from involving the victim in that exercise for the reasons that I have explained, nothing that I propose is startlingly new. The only new aspect is that the victim is directly involved.

The victim is involved if, and only if, he or she chooses to be involved. That is made abundantly plain in subsection (3) which states,

    "Nothing in this section shall compel a victim to assist in the preparation of or to sign or authenticate a victim impact statement against his will".

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A victim will be able to say, "No, I prefer to leave it to the prosecutor. I've had enough, thank you very much", or, "My confidence is with the court". In the United States research indicates that only 3 per cent. of victims exercised their right. However, that statistic has to be taken with the utmost care because the American system of sentencing is highly distorted by the fact that the prosecutor, the defence and the judge can enter into a plea bargain as a result of which the sentence is determined before the victim impact statement is put before the court. Therefore, knowing that their statement may well have no effect upon the result whatsoever, many victims will not take part. Other statistics suggest that in those cases where the victim has a right to take part, the victim opts to do so in perhaps slightly more than a quarter of the cases. That is also an interesting statistic.

The victim does not always say, "I want blood. I want an execution. I want severe punishment". In a significant number of cases the victim pleads for leniency or some other modest disposal. Those matters have to be borne in mind although I believe that it is dangerous to consider the American experience where the criminal justice system is entirely different.

I turn now to what I believe are the novel features of my proposal. First, I believe that it is essential for the due and proper administration of criminal justice that before the judge determines the sentence to be imposed, he should have before him all the relevant information. I cannot imagine that anyone will contradict that proposition. In particular he needs to have full information about the criminality—the wickedness, the evil as it were—that inspired the criminal act. That is always a relevant matter: how wicked was the person? What is the criminality of the offence? That information might, and commonly does, include mitigating material about the person's background, and state of intoxication—that has a certain relevance in regard to sentencing although not in relation to the commission of the crime itself—or circumstances arising from the events themselves. The criminality is one aspect.

The second matter on which the court requires to have information relates to the consequences of the crime. Some people have argued that one should not take into account the consequences; one should simply consider the criminality. In my judgment that does not accord with common sense. If a drunken driver drives off the road, crashes into a shop front and breaks the glass, that is one thing. If a drunken driver who is just as drunk and no more drunk drives off a road, crashes into a bus queue, and kills three children, that is an entirely different matter and the public would not understand if that difference were not taken into account. Therefore the consequences of the crime are undoubtedly a relevant matter.

It is sometimes true that the consequences of the crime change the character of the crime itself. I give one instance. If you take a bottle into a pub and hit two men on the head, of whom one has a thick skull, he will turn round and punch you on the nose. The other has a thin skull and dies. So you face two charges: simple assault;

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and culpable homicide. Therefore the consequences matter in relation not only to the nature of the crime but also to the appropriate penalty.

Currently and traditionally the convicted person will be able to place before the court material on all mitigating factors including those essential elements. He has the right to do so personally, or he may do so through his lawyer, commonly at public expense although that is not a matter of any great importance. In addition to placing material before the court by one of those routes, he can submit reports which have been prepared by others—psychological reports and medical reports. Social inquiry reports are placed before the court which largely contain the narrative of the accused person to the appropriate social worker or probation officer. So there are many routes by which the accused can place his account of matters before the court.

Not only that, he is entitled to call witnesses in mitigation of the penalty. He can, and commonly does, make allegations about others who are involved in the case. That sometimes happens in relation to the deceased. For example, we shall discuss later the case of Boyle, which will be referred to in connection with an amendment put down by the Government. The deceased was an infamous criminal called Bennett, from Glasgow. Undoubtedly, when I, as the trial judge, was moved to impose sentence, my attention was drawn to the fact that Bennett was a villain and his loss to Glasgow was not serious. That is a matter which I was asked to take into account. However, sometimes allegations are made about the deceased or the complainer which are not as easy to understand and establish.

In summary, the convicted person can always place before the court whatever he and his lawyer believe might help to mitigate the penalty. He has the right of appeal if the penalty is too severe, but the victim has no say whatsoever. It is not the job of the prosecutor to say anything at all about the possible sentence. In that context, I might refer the Committee to what was said in the McKenzie case in 1989, in which the noble and learned Lord the Lord Advocate appeared in his role as Solicitor-General. There the trial judge—who was myself—had taken a course of which the court, I confess, entirely disapproved. In the course of his opinion, which was the opinion of the court given by the Lord Justice General on behalf of himself, the Lord Justice Clerk and Lord Brand, the Lord Justice General, said:

    "It is right at this stage to emphasise the position of the Crown in this matter. As we have said, the Crown is the master of the instance at all times up to the moment when the prosecutor has moved the court to pronounce sentence. But at that stage, the matter moves entirely from the Crown to the court, and it is desirable for good reasons of public policy that the Crown should not be involved in the process of sentencing in any way whatever. It is known to all who practise in the criminal system of this country that the Crown has absolutely no role or interest in this process. The learned Solictor-General"—

that is, the noble and learned Lord, Lord Rodger of Earlsferry—

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    "today has quite rightly emphasised the importance of this principle and he has stressed that nothing should be done to weaken it in any way by putting the burden of a requirement such as placed on the Crown in this case to participate in the process".

So the Crown thoroughly disapproved of what had been proposed: namely, that the victim should be invited to consider expressing a view on the matter. That is a fundamental principle, that the prosecution should not be involved in the process.

Again, I draw a distinction between Scotland and England on the one hand and the United States on the other. What has happened in the United States as a result of the victims' bills of rights in the various places in the legislation is that the prosecutor has become, as it were, counsel for the victim. So he is the one who presents the victim as an oral witness in support of the victim impact statement. It is he who adduces the witnesses and in one case of which I know, the victim employed lawyers and inquiry agents to round up people who could show what a villain the accused was and the prosecutor then leads all those people as witnesses. The prosecutor enters into the process there. In my view, he should not do so here, except as a person who mediates between the victim on the one hand and the court on the other in the way of helping to prepare the statement and keeping it relevant and balanced.

In referring to what was said in the McKenzie case, I emphasised and I repeat that the Crown has no role in sentencing. In fact, that is the theory, but in practice there are sometimes departures from it. The most common way in which the Crown actually plays a role in relation to sentencing is this. The Crown may decide, for perfectly understandable reasons, to accept a lesser charge or to allow deletions from the charge. So, where someone is accused of using a knife repeatedly, the word "repeatedly" may disappear. If the charge is assault to cause severe injury, the word "severe" may disappear. There will, I hope, always be a justification for that, but there is a power with the Crown to reduce the charge and thus to reduce the sentence.

However, in the more serious case—and the one which is relevant here—the case may be settled by a modified plea. We do not have the American type of plea bargaining with the judge involved, but we have plea bargaining. The accused can go to the Crown and say: "Would you accept such-and-such a plea?" Alternatively, I have known the advocate depute, even in the High Court, to approach the defence and say: "We would be willing to accept such-and-such". That is one thing: to accept a modified plea, drop charge one; plead guilty to charge two; plead guilty to charge three, as amended and under certain deletions. That is the kind of deal which is necessitated by expediency at present.

However, what sometimes goes with it is that the defence and the prosecution agree on a narrative of the matters to be put before the court. I have known that to happen. It is not concealed from the court, and an advocate depute will stand up and give the account and if I say: "What about such-and-such?", he will say: "My Lords, my learned friend and I have agreed the narrative and I do not propose to add to it or subtract from it". What we may then get is, from the victim's point of view, a sanitised version of what happened.

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The victim being unrepresented, the victim being unheard and the victim being told nothing at all about either the modified plea or the agreed narrative, he or she may simply pick up the evening paper, listen to the evening radio or watch the television and discover what has happened in his absence. There have been a number of notorious cases at least reported in the newspapers of victims, as one can imagine, being seriously upset at the result of proceedings and greatly frustrated that they had no part in it.

All I ask in that regard is that the victim in serious cases involving some kind of personal hurt should be given an opportunity, which he or she can accept or reject, to place his or her views and perspective before the court. I do not suggest that the victim should tell the judge what to do. The maximum I suggest is contained in paragraph (v) of subsection (2) in Amendment No. 86:

    "the victim's recommendation, if any, to the court as to whether or not leniency should be exercised in passing sentence".

I wish to emphasise what I believe is the moderation of that wording. I do not believe that the victim should be entitled to say: "Send him away for life", "Execute him", or whatever. I do not believe that the victim should have that right. If the victim should have any word at all in relation to the sentence—and I remain to be persuaded that that is an entirely good idea—it should simply be a recommendation as to whether or not leniency should be exercised in passing sentence.

Paragraph (vi) is a technical matter. The victim's impact statement could contain,

    "any other matter prescribed by Act of Adjournal".

That would simply allow the system to be developed in the light of experience.

I believe, in common with others—including the noble Earl to whose amendment we are technically speaking at this stage —that more account must be taken of the concerns of victims, their interests and perspective. They must be treated with greater dignity and respect. They should not be regarded as they were in the past—but I think not now —as fodder for the criminal process. I have been saying that publicly for more than a decade: I referred to the matter in the Reith Lectures which I delivered in 1986. Members of the Committee who were fortunate enough to buy a copy of the book before it was remaindered will find references to it in the book. In particular, I quoted there from an article which appeared in The Times of 5th March 1986 which reiterates something of what I said. I quote from the article:

    "After a guilty plea it is possible, and quite usual, for the defendant's lawyer to plead in mitigation of sentence that it was really the victim, not the defendant, who was to blame ... The victim cannot insist on being heard".

The author of that article, John Spencer, goes on to quote Victims in the Criminal Justice System in an article which demonstrates that victims though pleased with the police, were,

    "increasingly disappointed with criminal justice as the case went on. By the end some were so fed up that they vowed that they would not bother to report an offence another time".

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That brings me to the next point. There is a danger that if we, as the mechanics of the criminal justice system who try to operate the machine, do not take account of the interests, feelings and concerns of the victims we shall alienate them from the criminal justice system. Each time we alienate a victim we alienate members of his or her family and friends. The criminal justice system is crucially dependent upon the co-operation and support of victims, witnesses and the public. If we neglect the proper interests of victims and others, we put that co-operation and support at risk. Accordingly, in supporting the principle of the amendment that the noble Earl put forward, I commend my Amendments Nos. 84 and 86. I shall return later to the other amendments. For the moment I confine myself to the principle of victim impact statements.

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