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Lord Macaulay of Bragar: I am obliged to the Minister for that reply. I was not for one moment suggesting that precognition officers are not skilled in the work that they do; namely, precognoscing witnesses. I was discussing whether the team representing the Crown is properly skilled in the law. For example, in a four-man murder case there may be four Queen's Counsel and four junior counsel being opposed by one advocate depute who has no one with whom he can consult on questions of law. Precognition officers are not skilled in matters of law. That is the point that I am trying to make.

If people who are skilled in the law are not available for major trials in Scotland that is an indication that there is something wrong with the system. I do not say that that is the Government's fault. I merely ask whether that is happening. If it is happening, how will it be stopped? The noble and learned Lord the Lord Advocate can be assured that he will receive every support from this side of the Chamber in attempting to reach a resolution of the situation.

We are concerned because burden after burden is being placed on the procurator fiscal service. In this Bill there is a duty to agree uncontroversial evidence. Who will do that? —the procurator fiscal service. That is placing another burden on the service. Who will be

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responsible for fiscal fines? The procurators fiscal will be responsible. As the law develops, additional burdens are placed on the service.

I note the assurance of the noble and learned Lord the Lord Advocate that if people want information, broadly speaking they can obtain it or find it in publications. However, I may return to the issue at a later stage. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

10.45 p.m.

Clause 57 [General provision]:

Lord Macaulay of Bragar moved Amendment No. 145:


Page 48, line 25, leave out ("including an absolute discharge").

The noble Lord said: The reason for proposing in Amendment No. 145 the deletion of the words "including an absolute discharge" is that an absolute discharge is not normally regarded as being a conviction. The reason for giving an absolute discharge is that a person will still have a clean record.

It may be that a person who has been given an absolute discharge has benefited to some extent from the activity with which he was charged. However, it seems a waste of time to take further action against a person who has been given an absolute discharge by a court which has heard all the evidence in the case and submissions from each side of the Bar. The wording seems an unnecessary addition to the clause. Therefore, I propose the deletion of that particular phrase. I beg to move.

Lord Rodger of Earlsferry: The position is that one of the disposals which is available in solemn proceedings or summary proceedings is the absolute discharge. I accept that it may be unusual in those circumstances for these particular provisions to be applicable or for it to be wished to apply them. Nevertheless, there may be cases where it would be appropriate for the machinery to be operated. Therefore, in order for those cases to be dealt with where appropriate it seems right that an absolute discharge should be included.

In order to allow for those cases, even if they are relatively few, we believe that the words should be included. Therefore, I cannot accept the amendment.

In adopting the wording we are following the recommendation of the Scottish Law Commission.

Lord Macaulay of Bragar: I appreciate that, but the point was made for another reason. I have heard what the noble and learned Lord had to say and I shall consider it. In the meantime I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 57 agreed to.

[Amendment No. 146 not moved.]

Clause 58 agreed to.

Clause 59 [Realisable property]:

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Lord Rodger of Earlsferry moved Amendment No. 146A:


Page 49, line 42, at end insert (", less any amount due by him at that time in respect of any compensation order under section 58 of the Criminal Justice (Scotland) Act 1980 made before the confiscation order.").

The noble and learned Lord said: In moving Amendment No. 146A I shall speak also to Amendments Nos. 153D and 193.

In its report, the Scottish Law Commission considered that there should be no "obligations having priority" when the court came to consider the amount that might be realised at the time a confiscation order is made. We accept the broad approach of the Scottish Law Commission in this regard. However, where a compensation order has previously been made to a victim and remains unpaid we consider that that order should retain the status of an obligation having priority.

We believe that the interests of victims who have been granted previous compensation orders should be recognised in that way. I beg to move.

On Question, amendment agreed to.

Clause 59, as amended, agreed to.

Clauses 60 and 61 agreed to.

Clause 62 [Statements relevant to making confiscation orders]:

Lord Rodger of Earlsferry moved Amendment No. 146B:


Page 53, leave out lines 3 to 8 and insert ("the court shall consider the matters being challenged at a hearing.
(7) Where the judge presiding at a hearing held under subsection (6) above is not the trial judge he may, on the application of either party, if he considers that it would be in the interests of justice to do so, adjourn the hearing to a date when the trial judge is available.").

The noble and learned Lord said: Clauses 62(6) and (7) make provision for the hearing of an application challenging a statement under Clause 62(1) about the accused's benefit from the commission of the offence.

Clause 62 proceeds on the basis that the trial judge will be available. If a hearing cannot be arranged "within a reasonable time" the hearing may proceed before another judge.

We consider it preferable to alter that provision slightly so as to allow for matters to proceed before another judge unless either party applies, in the interests of justice, for the hearing to be adjourned to take place before the trial judge.

I believe that the amendment achieves a clearer procedure and would allow hearings to proceed as soon as possible while nonetheless providing the necessary safeguard. I beg to move.

On Question, amendment agreed to.

Clause 62, as amended, agreed to.

Clauses 63 to 65 agreed to.

Clause 66 [Confiscation orders where proceeds of crime discovered at later date]:

Lord Macaulay of Bragar moved Amendment No. 147:


Page 56, line 17, leave out ("6") and insert ("5").

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The noble Lord said: The amendment is grouped with Amendment No. 149. Read together they give a degree of uniformity to confiscation and applications for a confiscation order and the period for which a person can claim compensation for wrongful confiscation.

I am not sure from where the period of six years comes. I suspect that it comes from the English law of prescription whereas the normal Scottish prescription period of five years applies to contract and delictual rights. That can be found in the Prescription and Limitation (Scotland) Act 1973. To give uniformity to the Bill, and equality for each side (if I may so put it), I beg to move this amendment.

Lord Rodger of Earlsferry: While I accept that in its report the Scottish Law Commission referred to the quinquennial period, nonetheless the Scottish Law Commission recognised that other factors have a more direct bearing on the recommendation for six years. In particular, there is the fact that the Finance Act 1985 has a requirement that value added tax records, which may be important in discovering additional proceeds, should be preserved for six years. Perhaps I may point out that there are other areas, for example in relation to back tax under the income tax legislation, for which six years is the statutory period. There is no real, direct connection with the period of prescription. It was not in regard to the limitation period in England that that period was chosen.

In addition, in view of the close relationship between Scottish and English drug trafficking legislation, and the confiscation regime generally, for which the period of six years applies, I think that it would be appropriate that the six-year time limit should be applied. For that reason, I do not accept the amendment.

Lord Macaulay of Bragar: I am obliged for that explanation. When I hear in respect of confiscation orders that six years later the VAT returns of the people involved in those activities will be of any significance, it shows a substantial amount of charity and faith in human nature on the part of the noble and learned Lord the Lord Advocate. However, I understand the reasons for it. I do not accept them, but I shall not make an issue of it at this point. In those circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Rodger of Earlsferry moved Amendment No. 147A:


Page 56, line 38, leave out ("11(2)") and insert ("58(2)").

The noble and learned Lord said: This is a technical drafting amendment. I beg to move.

On Question, amendment agreed to.

Clause 66, as amended, agreed to.

Clauses 67 to 69 agreed to.

Clause 70 [Compensation]:


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