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Lord Macaulay of Bragar: I am obliged to the noble and learned Lord for his explanation. I shall have to take advice on whether what he has said is factually correct. I am not fully qualified to say whether his definition of a clinical psychologist in the context in which he presented it is correct. I shall make due inquiries, as they say in certain quarters. If my inquiries show that the noble and learned Lord is not correct in what he said,

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then, as General MacArthur said, "We shall return". In the meantime, I shall depart and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 96 not moved.]

Clause 33 agreed to.

Clause 34 [Sentence for offence committed while subject to requirement to perform unpaid work]:

Lord Macaulay of Bragar moved Amendment No. 97:


Page 24, leave out lines 3 to 6.

The noble Lord said: This amendment has been grouped with Amendments Nos. 98 and 99. The effect of the amendment is to delete the requirement for offences committed while the accused is subject to a community service or other order to be separate or liable to indictment.

The Law Society of Scotland has expressed the view that the accused could be prejudiced if the fact of his earlier offence is known to the judge or jury. That may or may not be a proper view. The accused is always entitled to the presumption of innocence. It may be that the Government should give some consideration to deleting these provisions and providing the appropriate notice to the accused on a separate indictment or complaint. The matter referred to is not necessary for the proof of the commission of the offence libelled and is therefore irrelevant to the issue that is before the court. I beg to move.

Lord Fraser of Carmyllie: While it is, and has been for some time, our policy to encourage as much as we can the use of community service orders—and indeed I believe that it has been successful —what we must ensure is that where such community service orders are undertaken it is to be regarded with great seriousness if someone offends while at the place where work is being done as part of that community disposal. The proposals that we have in Clause 34 were published in Firm and Fair and at that time received no adverse comment. The concerns of the noble Lord over the possibility of prejudice against the offender caused by libelling the circumstances were indeed given careful consideration for just the reasons that he has outlined.

We believe that the clause as drafted provides the clearest and fairest way forward by best informing the court of the true nature of the offence and also informing the alleged offender of the full scope of the charge laid against him, hence giving him an opportunity to respond to it.

I should say that this clause arose out of a particular case where someone under a community service order, having gone to an old lady's house to undertake some redecorating, while there took the opportunity to leave the window open and then returned later that night to steal property from her. It is difficult to see how the full circumstances of that case would be explained to the court if it could not at one point or another be explained to it that the accused was in the property at the time lawfully discharging what was required of him in terms of a community service order.

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So, while I understand in principle what concerns the noble Lord, after much careful thought we have reached the conclusion that this is the best way to approach the matter.

Lord Macaulay of Bragar: I am obliged to the noble and learned Lord for that explanation, which to me certainly puts the matter in a different light. I appreciate that in the course of a trial technical difficulties might arise in the proof of a primary offence. The fact that the offence was created at a place where the order was being carried out would be an aggravating factor that the prosecutor might bring before the court in moving for sentence. I see the practical difficulties and certainly will consider what the noble and learned Lord said. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 98 and 99 not moved.]

Clause 34 agreed to.

Clause 35 [Leave to appeal]:

Lord McCluskey moved Amendment No. 100:


Page 25, line 11, at end insert:
("( ) In section 228(2) of the 1975 Act (right of appeal) at the end there shall be inserted "but no appeal shall be entertained by the High Court on the ground of an alleged miscarriage of justice consisting of an alleged misdirection of the jury by the trial judge unless, before the jury has returned a verdict, there has been presented to the trial judge a Note of Exceptions to the Charge specifying the alleged misdirection, whether it be a misdirection by omission or by commission.").

The noble and learned Lord said: Again, I am conscious of the fact that the amendment might have been better phrased and better placed, as it were, but I have chosen to put it in this place because it is an amendment to Section 228 of the 1975 Act. It raises a point which I believe that the Minister or the noble and learned Lord the Lord Advocate who will reply might say should be dealt with by the Sutherland Committee. I am not sure about that. But if the noble and learned Lord were disposed to give me such a reply, I would be inclined to accept it.

Perhaps I may illustrate the matter in this way. In the late 1950s I appeared in a case which (again) was called McKenzie, although that time I was McKenzie's counsel. We appeared in the Glasgow High Court in what I might call the twilight days of Lord Carmont. Lord Carmont omitted to tell the jury that the burden of proof was on the Crown; or indeed that the burden of proof was a heavy one—namely, proof beyond reasonable doubt. For some reason—perhaps because he was asleep (I do not remember who he was)—the prosecutor did not draw his Lordship's attention to those significant omissions. We, who were acting for the defence were entitled to exercise our right—and we did so—to sit on our hands and say nothing. The result was that we had an unanswerable appeal when the matter went to the Criminal Appeal Court. In those days there was no retrial and so the conviction had to be quashed.

I regard it as intolerable that when those who represent the accused person know perfectly well that there has been a misdirection by the judge—because he has omitted to say something, or even because he has made an obvious mistake, as sometimes happens,

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particularly towards the end of the week or the end of the day—the defence should be able to sit on their hands and wait until the charge is finished, knowing that they then have a good ground of appeal. Even today, when there is the right to a retrial or the Crown may exercise that right, if allowed it by the court, it is not satisfactory because it is very expensive and causes much delay and uncertainty.

Accordingly, I seek to introduce into the criminal procedure a step which was well known in civil cases—and still is well known indeed but there are very few jury trials in civil cases nowadays. But in the 1950s and 1960s, if counsel recognised that the judge in his direction to the jury had made a statement of the law or indeed some statement of mixed fact of law which counsel thought was challengeable, then it was his duty to lodge with the judge a written note of exceptions. It was handwritten and quite informal but it raised the point. Only then could the point be taken on appeal.

I am not sure how far one would go in relation to criminal matters, but in the last few words of the amendment I have drawn attention particularly to the misdirection by omission. That is the hardest thing of all to pick up. I have known cases in which I have been involved as counsel—and I am very sore about a case in which I was involved as a judge—where at a later stage someone came along and noticed what no one at the trial had noticed because it was entirely unimportant; namely, an alleged omission by the trial judge.

One has to recognise, and I am sure that the noble and learned Lord the Lord Advocate will recognise it, having been there many times, that on appeal in the Criminal Appeal Court there are a number of very clever, able and highly talented lawyers who can sit down with a judge's charge and consider the case with lateral thinking. They come up with conclusions as to what is missing that no one else had thought of before. In other words, one becomes slightly divorced from the reality of the trial. Sometimes, those points may strike a chord with the appeal court, which itself is slightly divorced from the ordinary realities of the trial, as it has recognised itself many times in its judgments about the distinction between reading the charge, reading the evidence and taking part in the trial. So I do not slander the appeal court when I say that.

For all those reasons I urge the Committee to accept this amendment which would thus enable the trial judge at least to be asked to consider whether his directions are sound at the time and in the proper context; namely, in the context of the trial itself. I beg to move.

8.45 p.m.

Lord Macaulay of Bragar: I am rather concerned about the absolute terms of this amendment. At the end it states:


    "no appeal shall be entertained by the High Court on the ground of an alleged miscarriage of justice ... unless ... there has been presented to the trial judge"—

presumably at the trial—


    "a Note of Exceptions to the Charge".

It is easy enough—although it is never easy—in civil cases to present a note of exceptions; but the atmosphere in a civil jury trial is entirely different from the

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atmosphere in a criminal trial. People are being asked to make instant decisions and it is not easy, with the responsibilities involved in the criminal trial, to take what might be looked upon as a casual matter; namely, to prepare a note of exceptions before the jury retires. This amendment is in absolute terms. What happens when one of the clever counsel or clever lawyers to whom the noble and learned Lord referred gets hold of the charge and says, "This is an absolute nonsense"? I ask the noble and learned Lord whether the appeal is not to be heard because of, in broad terms, the negligence or omission by the original counsel; and if so, what sanction does the man in the middle withall—the accused—have against the original counsel.

In its present terms the amendment may raise a number of problems and many more problems than it seeks to solve.


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