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Lord Fraser of Carmyllie: In our view the provision does not significantly alter the law of Scotland in relation to early guilty pleas. However, we believe it usefully clarifies the existing law. It certainly does not impose, as the noble Lord, Lord Macaulay, seemed to fear, a formal or rigid system of what is commonly known as sentence discounting.

Since the case to which he referred of Strawhorn v. McLeod in 1987 there has been some doubt about the propriety of taking into account the time and circumstances of an accused person's plea of guilty. In its judgment in that case the Appeal Court held that,


was objectionable. However, as the noble and learned Lord, Lord McCluskey, has said, it was, and remains, perfectly proper to reduce a sentence to take account of a guilty plea where that appears to be justified by the circumstances of the particular case.

It was widely perceived, however, that the effect of Strawhorn was to prohibit such a reduction in sentence. I understand, following the consultation paper that we issued —the review of criminal evidence and criminal procedure—that a proposal along the lines of what is now contained in Clause 27 was suggested by High Court judges in their response to that paper because it will make it clear that it is indeed permissible to take into account a guilty plea when considering sentence. This will remove any inhibitions felt by sentencers. I would say to the noble and learned Lord, Lord McCluskey, that I suspect it will remove inhibitions not among the senior judiciary but, I believe, among the inferior judiciary who have inhibitions following on that case. They will know that they can take into account the fact that a plea has come earlier rather than later.

While in many respects I wish it was not necessary to have this clause, I part company with the noble Lord in that I believe that in the circumstances it is necessary

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to place this measure on the face of the statute. However, at the same time I of course accept entirely what he says about what is appropriate and proper to do in Scotland at the present time.

Lord Macaulay of Bragar: I am grateful for the explanation which the Minister has given and for the contributions made by other Members of the Committee. It is the first time I have realised that the aim of the measure is to clarify the existing law. I still believe that once the measure is on the statute, this type of plea bargaining between the accused and the court will be, as far as the accused is concerned, a trip into the unknown. However, in the meantime I withdraw my opposition to the clause.

Clause 27 agreed to.

[Amendments Nos. 86 and 87 not moved.]

The Earl of Lindsay: I think this might be a convenient moment for the Committee to adjourn. I suggest that the Committee Stage begins again at eight o'clock.

[The Sitting was suspended from 6.58 to 8 p.m.]

Lord McCluskey moved Amendment No. 88:


After Clause 27, insert the following new clause:

("Victims right to attend sentencing proceedings

. After section 217A of the 1975 Act there shall be inserted the following section—
"Victim's right to attend sentencing proceedings.

217D. The victim of any crime, or the next of kin of the victim if the victim has died, shall have the right to attend all sentencing proceedings in solemn procedure under this Act and shall be given adequate notice by the Crown Office of all such sentencing proceedings concerning the person or persons who committed the crime or offence concerned.".").

The noble and learned Lord said: Amendment No. 88 is associated with matters that we have already discussed. I can therefore deal with it fairly briefly.

I mentioned at an earlier stage that from time to time the person who is truly the victim of a crime discovers from the newspapers or the radio what has happened to his case. He may even discover it in a less formal way. That can lead to frustration and discontent. Accordingly I propose—although I suggest that we begin gradually because I am a pragmatist in these matters—that the victim of any crime, or the next of kin of any victim who has died, should have the right to attend all sentencing proceedings in solemn procedure under the 1975 Act. I am concerned with the more serious cases—those which are liable to attract a sentence of imprisonment exceeding six months.

The other aspect of the matter is that the Crown Office would be required to give adequate notice of all such proceedings.

Once again I appreciate that difficult problems are involved in this matter, because it is quite common that sentencing follows immediately upon a plea of guilty or upon a verdict of guilty delivered in the court. Therefore one can only give tentative notice that sentencing might take place on a particular occasion. However, it appears that the matter may be met if the Crown were to intimate to the victim that the case starts on a particular date and is expected to finish on that or a subsequent date, and

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the victim has the right to attend. At the end of proceedings on that date, if sentencing has not been pronounced, the victim would be informed by the procurator fiscal of the date to which matters have been postponed.

That is the minimalist position as regards according to victims the dignity and respect of which I spoke earlier and which the noble Earl has supported.

The Earl of Balfour: Before the noble and learned Lord sits down perhaps he can say whether the victim has any right to attend the court at present.

Lord McCluskey: The answer is that the victim has no more right to attend the court than the noble Earl has as a member of the public. Any member of the public is entitled to attend the court. The victim may be cited to attend the court as a witness, but that is as far as it goes. The victim has no right to attend other than as a member of the public, but because the victim will know more about the proceedings than most people it is likely that he will be able to exercise that right in a way in which the noble Earl or I might not be able to exercise it. I beg to move.

Lord Macaulay of Bragar: In principle rather than detail, this is an interesting and welcome amendment which has been put before the Committee. Various matters arise. In a long murder trial, for example, the court can only guess when the case may end. Difficulties arise where, for example, there is a change of plea on perhaps the second day of a case which might be expected to run for two weeks. That is not an unusual feature of life in the courts.

This is a socially oriented amendment which would be welcomed by victim support organisations, which want the victim to be deeply involved at the early stages of a case if possible but not too deeply involved in the later stages when it comes to questions of revenge and so on, which we shall discuss later.

Therefore, I support the amendment in principle although not in detail.

The Earl of Mar and Kellie: Two of my amendments are grouped with the amendment of the noble and learned Lord, Lord McCluskey. Perhaps I may speak to them briefly.

Amendments Nos. 129 and 131 are both concerned with the treatment of victims. The background to the amendments is that I believe that we now offer considerable care to offenders but I feel that we could do slightly better for victims. Therefore, in Amendment No. 129 I seek to assert a new overarching principle of liaison and care for the victim by the court system.

I envisage that there would be increased contact with victims to ensure that they know what is happening and how it will be carried out at the court hearing. At trials there would be a victim and witness support service in the courthouse staffed by properly funded volunteers. That would reduce many of the anxieties felt by victims and witnesses.

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Regarding Amendment No. 131, there would be no loss and everything to gain if the court service were able to give more information to witnesses and victims about the case and the court process in which they are reluctantly involved.

Lord Fraser of Carmyllie: Following on the question which my noble friend Lord Balfour asked, it is the position that all members of the public are entitled to attend proceedings in open court. If one of those members of the public happens to be the victim he or she can, of course, be present.

Nevertheless, I believe that there is a problem. I do not know the noble and learned Lord's practice, but I am aware of cases in which the victim has been in the court building and for one reason or another a plea has emerged quickly and the plea of guilty has been taken and discussions over what sentence might be imposed are under way, but the victim has no idea of what is going on. I am conscious that in a number of cases that has caused great offence. In the past I have sought to encourage members of the judiciary—whether they be superior or inferior—that in such circumstances it is desirable to invite not only the victims but any of the witnesses who are present in witness rooms to come into the court to hear what is taking place. That seems to go some way to satisfying them.

As the noble and learned Lord anticipated, the second leg of his amendment placing a duty on the Crown Office to give adequate notice of all sentencing procedures has its difficulties. Those of us who have practised in the courts are well aware that it is difficult to predict when a plea of guilty may be tendered. In practice it is usually the case that sentence follows immediately.

However, I do not wish to sound negative, notwithstanding those difficulties. All police forces in Scotland now have clear policies on the provision of information to victims, and we need to determine exactly what information victims need and want. I hope that it will meet with the approval of the noble and learned Lord that we believe that the correct way to attempt to answer that question is to ask the victims themselves. That is what we are doing at the moment. We have commissioned research into the information needs of victims. I hope that the results of that research will be available soon. Both my noble and learned friend the Lord Advocate and I are agreed that we should be guided in our approach to the provision of information by the results of that research.

Although he is not at present in the Chamber, the noble Lord, Lord Windlesham, last Thursday asked about provision of support for victims in court in Scotland. We had a slightly uncertain ending to that exchange. It might be helpful if I place the position on record for him.

The national standards for social work service in the criminal justice system in Scotland set out in the court-based social work section that court social workers should provide information, advice and support to victims of crime. Those standards emphasise that victims appearing in court are often under severe stress. One task is to make appropriate referrals to victim

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support schemes. Court social workers should be aware of the problems those people face and provide immediate assistance wherever possible. Responsibility for first-line support to victims in the courts in Scotland is therefore vested in local authorities and is funded 100 per cent. by the Scottish Office. Victim Support (Scotland) will arrange for a victim who requests assistance to be accompanied to court and will provide support and assistance to those referred to it by the court social worker.

I hope that that will reassure the noble Lord that we respond quite as vigorously north of the Border as is done south of the Border to the needs of victims as they come into court.


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