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Lord Rodger of Earlsferry: I hope that the Committee and the noble and learned Lord, Lord McCluskey, will not think me discourteous if I reply briefly. It is not because I do not recognise the difficulty of the specific case to which the noble and learned Lord refers. He will acknowledge that having considered the matter carefully, his colleagues came to a different view: that no exception on the common law should be allowed although they recognise that there might be a case for legislation.

As the noble Lord, Lord Macaulay, said, we are expecting—I would say imminently—a report from the Scottish Law Commission which deals with matters of hearsay. I happen to know that the case of McLay is among the issues which the commission has considered. I do not know its views on the matter. Therefore I cannot anticipate them.

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However, perhaps I may say to the noble and learned Lord, Lord McCluskey, that in all the circumstances it would be appropriate for us to consider the matter in the light of the report by the Law Commission which undoubtedly will have been able to take this case into account in the wider context of a review of various problems regarding hearsay.

Lord McCluskey: I am perfectly content with that answer by the noble and learned Lord. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Rodger of Earlsferry moved Amendment No. 113:


Page 29, line 42, at end insert:
("(1C) The indictment in a new prosecution under this section shall identify any matters as respects which the prosecutor intends to lead evidence by virtue of subsection (1B) above.".
(2) In section 452B of the 1975 Act (corresponding provision in relation to summary proceedings)—
(a) at the beginning of subsection (1) there shall be inserted "Subject to subsection (1A) below,"; and
(b) after subsection (1) there shall be inserted the following subsections—
"(1A) In a new prosecution under this section the accused shall not be charged with an offence more serious than that of which he was convicted in the earlier proceedings.
(1B) In proceedings in a new prosecution under this section it shall, subject to subsection (1C) below, be competent for either party to lead any evidence which it was competent for him to lead in the earlier proceedings.
(1C) The complaint in a new prosecution under this section shall identify any matters as respects which the prosecutor intends to lead evidence by virtue of subsection (1B) above.".").

On Question, amendment agreed to.

Clause 38, as amended, agreed to.

Clauses 39 and 40 agreed to.

Clause 41 [Examination of facts]:

Lord Fraser of Carmyllie moved Amendment No. 114:


Page 32, line 22, at end insert:
("( ) Where it appears to the court that it is not practicable or appropriate for the accused to attend an examination of facts the court may, if no objection is taken by or on behalf of the accused, order that the examination of facts shall proceed in his absence.").

The noble and learned Lord said: In speaking to Amendment No. 114, perhaps I may also speak to Amendments Nos. 118, 125A, 127A, 127B and 127C.

The two amendments to Clause 41 extend to the holding of the examination of facts, the principle enshrined in Section 174 of the 1975 Act that court proceedings may be taken in the absence of the accused, if the court considers that it may be impracticable or inappropriate to attend court, and where there is no objection to such a course of action.

The four amendments to Clauses 43 and 44 provide that an appellant may, if he wishes, attend appeal hearings provided for in these two clauses, unless the High Court determines that his presence is not

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practicable or appropriate. This formula will allow the High Court so to determine either on distress or harm to health along the lines of Section 174 of the 1975 Act or on grounds that the appeal is only on a point of law, that is, along the lines of Section 240 of the Act. It seems right in the circumstances to provide for both. I beg to move.

On Question, amendment agreed to.

Lord Macaulay of Bragar moved Amendment No. 115:


Page 32, line 27, leave out ("as nearly as possible").

The noble Lord said: This is a short amendment omitting the words "as nearly as possible" at page 32, line 27. The objective behind the amendment is to ensure, so far as possible, that the ordinary rules of evidence and procedure which would apply in a criminal trial apply to the examination of facts and that some degree of rigidity is imposed on the leading of the evidence.

It is of course appreciated that the proceedings may cause great evidential difficulties; but in my submission to the Committee it would not do any harm to make that flexible change, if we may call it that, in Clause 41. On that basis, I beg to move.

Lord Fraser of Carmyllie: I have some sympathy with the thinking that lies behind the noble Lord's amendment. It is our intention also to ensure that the rigorous standards relating to evidential and procedural matters at a trial should equally apply at an examination of facts. To take a couple of examples, that means that witnesses would have to be sworn and could be held in contempt of court.

However, we do not propose dilution of those standards and the safeguards which they represent by the use of the words "as nearly as possible". It simply reflects the fact that an examination of fact cannot exactly replicate a trial. For example, there will not be a jury present and there will be no verdict at the end.

I should say to the noble Lord that there is also precedent for the use of the words. If he were to look at Section 4(7) of the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976, again it is appropriate that procedures should mirror trial procedures and standards as nearly as possible, while recognising the fact that they cannot be an exact replica.

I am not aware that the courts have had difficulty in interpreting such words in a way that ensures that the interests of justice are served. I hope that with the parallel and that explanation the noble Lord will feel confident that we are after the same objective and can withdraw his amendment.

Lord Macaulay of Bragar: It is clear that we are all after the same objective in these unfortunate cases. I am obliged to the noble and learned Lord for his reference to Section 4(7) of the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976. As they used to say in show business, I have not brought my music with me so I cannot refer to it now, but I shall in due course take note of what the noble and learned Lord said. In the meantime, I beg leave to withdraw the amendment.

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Amendment, by leave, withdrawn.

Lord Fraser of Carmyllie moved Amendment No. 116:


Page 33, line 6, at end insert:
("( ) The court may, on the motion of the prosecutor and after hearing the accused, order that the examination of facts shall proceed in relation to a particular charge, or particular charges, in the indictment in priority to other such charges.").

The noble and learned Lord said: In speaking to Amendment No. 116, perhaps I may also speak to Amendment No. 119. Clause 41 already provides that courts may desert individual charges pro loco et tempore at an examination of facts. Let me explain why. For an accused facing multiple charges there may be a main charge or a group of main charges and a number of lesser ones. If the court considers that the accused did the act charged as the main offence, that would be sufficient to entitle the court to impose an appropriate disposal. In practical terms—i.e. for purposes of disposal—it might be unnecessary to proceed further to consider all the lesser charges, although the Crown might wish only to desert those remaining charges pro loco et tempore rather than outright, in order to allow of the possibility of re-indictment of those charges should the accused recover his sanity. The clause already provides for such desertion of charges on a motion from the prosecutor and after hearing the accused or his representative. The accused may of course not wish to leave all the remaining charges unaddressed and may express that view to the court. On the other hand, the accused may agree that further prolonging the examination of facts is indeed unnecessary.

The provisions already in the Bill to desert individual charges pro loco et tempore are of little practical benefit, however, unless the court also has a power to address charges individually or in groups, as it sees fit. This is what Amendments Nos. 116 and 119 provide in respect of examinations of facts in both solemn and summary proceedings. In both cases the decision so to proceed would be on the same basis as desertion of individual charges; that is to say, on a motion of the prosecutor and after hearing the accused.

I commend these amendments to the Committee.

Lord Harris of Greenwich: Perhaps I may make just one comment. There appear to be a remarkable number of government amendments to this Bill at Committee stage. Certainly, all of us would be warmly in favour of ensuring that we do not make mistakes in legislation. But there really is little excuse for the number of government amendments to this Bill. We are not discussing the Report stage of the Bill; we are in Committee. I really do hope that in future—and I hope that the Government's business managers will take note of this—we do not waste an enormous amount of time in this Chamber discussing government amendments which should have been foreseen by the departments concerned before the Bill was published.


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