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Lord McCluskey: I am reluctant to leave the matter in that way because I am not satisfied that the answer that the noble and learned Lord the Lord Advocate has given is a convincing one. Section 233(2) of the 1975 Act deals only with grounds of appeal. I do not read that—I may be wrong—as empowering the court, by Act of Adjournal, to require an accused person to state his arguments in the note of appeal. I doubt very much whether the court would regard that requirement as intra vires.

The second point concerns the Granger case. I recognise that the noble and learned Lord the Lord Advocate was Solicitor General at the time the case was heard in Strasbourg, although I believe that the noble and learned Lord, Lord Fraser, was the Solicitor General at the time the matter was argued some years previously in the High Court in Edinburgh. I recognise that in the Granger case the grounds of appeal were very well detailed. So much so, that the court in Edinburgh, despite the fact that Granger was not represented before it, chose to hear Granger in full. Granger read out a speech which had been written by his solicitor and which dealt with all the grounds of appeal. In the view of the Lord Justice Clerk, who was presiding, he did so very convincingly.

Perhaps I may refer to the judgment of the European Court of Human Rights. Paragraph 21 of its report states:


That virtually says that these points are unarguable; it is virtually the same test. Therefore, the Lord Justice Clerk and his colleague would have said that the matter was unarguable.

The Government, in the person of the noble and learned Lord the Lord Advocate, as he now is, argued that the appeal by Granger did not require a grant of legal aid, which the Government describe as being, "wholly without substance" and having "no reasonable prospects of success". I refer to page 480, paragraph 45, of the report. Therefore, from time to time both the government counsel and the judges refer to the matter as being one without substance. Accordingly, it seems likely that that is a case in which the court would have upheld that the appeal was unarguable. It would have done so without representation by or for Granger and that would be in conflict with the article.

Secondly, the noble and learned Lord the Lord Advocate specifically referred to there being no equality of arms. The point was that, on the one side, the court saw the Solicitor General for Scotland, with his Crown Office assistant, argue the case and, on the other side, a man standing up and reading a speech that had been prepared for him by his solicitor. It considered that there was no equality of arms there. I recognise that principle but urge the noble and learned Lord the Lord Advocate to bear in mind what I said earlier—that the judges'

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report is not, or is commonly not, an impartial assessment of the situation. It ought to be and in my book I invite those who write such reports to try to make them impartial. However, I know that when one sits down with all the criticisms of one's charge and one's behaviour, it is difficult to sit back and be impartial about the matter. One tends to reply as an advocate on one's own behalf. It is one's last kick at the ball before one reads in the papers that the appeal court has overturned the decision on the ground that one is some kind of clown and has misdirected the jury.

I have expressed the matter in terms that are perhaps unduly lighthearted at this time of night. However, I mean the point and I hope that the Government will think carefully about the matter. In the meantime, I withdraw my opposition to the clause.

Clause 35 agreed to.

Clause 36 agreed to.

Clause 37 [Extension of certain time limits with respect to appeals]:

Lord Macaulay of Bragar moved Amendment No. 107:


Page 29, line 22, at end insert:
("( ) In Section 451(2) of that Act after the word "reasonable" there shall be inserted "and shall pending the report liberate the appellant forthwith".").

The noble Lord said: This amendment has been grouped with Amendment No. 108. Their purpose is to ensure that a person in custody pending an appeal by stated case should be liberated pending an appeal in the event that the time limits for stating the case are extended. From time to time we have heard the complaint that by the time stated cases are received the convicted person has served the sentence in the matter under review. In the interests of the convicted person, therefore, this amendment is not unreasonable. What is happening is completely outwith his control. I beg to move.

Lord Rodger of Earlsferry: The noble Lord's amendment would result in the strange effect of appellants being liberated automatically where an extension was granted. They would be liberated not even on bail or subject to appropriate conditions.

Provision is made for an extension. Where that arises, it could be that it could reach the stage where the person concerned had served the vast majority of his sentence before his appeal could be considered. However, where such an extension is made that could in itself be a ground upon which an appellant could make a further application for bail under the terms of the existing legislation. Therefore, we see no reason for such a provision. It is already covered by the legislation.

9.30 p.m.

Lord Macaulay of Bragar: The noble and learned Lord says that these provisions are superfluous in the present state of law and that the convicted person has ample scope within the present law to be liberated. With respect, I do not accept that in its entirety. I accept the criticisms which he makes of the fact that there is no mention in the amendment of bail or conditions

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imposed. However, he may wish to think again about the matter with a view to providing that a person may be liberated on bail under such conditions as the court may wish to impose pending receipt of the stated case. However, I have noted what the noble and learned Lord said and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 108 not moved.]

Clause 37 agreed to.

Clause 38 [New prosecution for same or similar offence]:

Lord Rodger of Earlsferry moved Amendment No. 109:


Page 29, line 30, leave out ("In each of sections 255 and 452B") and insert ("(1) In section 255").

The noble and learned Lord said: Clause 38 ensures that in a fresh prosecution following appeal an accused may not be charged with an offence more serious than that of which he was originally convicted. Subsection (2), which is envisaged in the amendment, deals with the position in summary cases. To ensure that this restriction does not hinder the Crown in leading all relevant evidence, the clause gives both parties power to lead any evidence which it was competent to lead in the original proceedings.

These amendments are intended to assist the accused and the court by requiring the prosecutor to indicate on the fresh indictment or complaint any matters about which he intends to lead evidence by virtue of that power. That may and usually will be done by including the relevant charge.

Of course, under the decision of the Appeal Court in Nelson, that gives much of the cover. But there may be occasions when that may not be appropriate—for example, where there is an unappealed minor conviction on the previous indictment which relates to matters which it would be relevant to lead in evidence. In that situation, it could not be made the subject of a charge because there has already been a conviction, but, according to and modifying existing practice, it would be possible to give notice on the face of the indictment to the accused that it is intended to lead evidence of a certain kind which would be relevant to the proof of the main charge. We see that as being of assistance to the defence. I beg to move.

On Question, amendment agreed to.

[Amendment No. 110 not moved.]

Lord Rodger of Earlsferry moved Amendment No. 111:


Page 29, line 40, after ("shall") insert (", subject to subsection (1C) below,").

The noble and learned Lord said: I beg to move.

Lord McCluskey: There is a point which I wish to raise in relation to subsection (1C) but perhaps I should wait until Amendment No. 113 is called. Although this is a paving amendment, I believe that it is appropriate for the noble and learned Lord the Lord Advocate to explain his position in relation to Amendment No. 113. Otherwise, if the Committee were to refuse to allow

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Amendment No. 113, we should be in a rather bizarre position because we should have agreed to Amendment No. 111, which inserts the reference to subsection (1C).

Lord Rodger of Earlsferry: I believe that in speaking to Amendment No. 109 I have also spoken—perhaps I should have done so explicitly—to Amendments Nos. 111 and 113. In connection with the position on evidence, I explained about giving notice of evidence relating to the main charge. That was what I was speaking to in relation to Amendment No. 113. I apologise to the Committee for not making that clear.


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