Previous Section Back to Table of Contents Lords Hansard Home Page


Lord Macaulay of Bragar: I have listened to what the noble and learned Lord the Lord Advocate had to say. I do not intend to press the amendment at this stage of the proceedings. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 153 not moved.]

Clause 84 agreed to.

Clauses 85 to 91 agreed to.

Schedule 3 agreed to.

Clause 92 [Disposal of family home under Chapter I or II]:

Lord Rodger of Earlsferry moved Amendment No. 153A:


Page 77, line 43, leave out ("was") and insert ("has been").

The noble and learned Lord said: In moving this amendment I shall speak also to Amendments Nos. 153B and 153C. These are technical amendments and simply seek to ensure that the relevant interest in the family home which is protected by Clause 92 can include one which exists at the time of the proposed disposal of that family home. I beg to move.

16 Jan 1995 : Column 517

On Question, amendment agreed to.

Lord Rodger of Earlsferry moved Amendments Nos. 153B and 153C:


Page 78, line 16, after first ("person") insert ("has or").
Page 78, line 17, leave out ("was") and insert ("is").

The noble and learned Lord said: I have already spoken to Amendments Nos. 153B and 153C. I beg leave to move them together.

On Question, amendments agreed to.

Clause 92, as amended, agreed to.

Schedule 4 [Amendments to the Criminal Justice (Scotland) Act 1987 Relating to Part II]:

Lord Rodger of Earlsferry moved Amendments. Nos. 153D and 153E:


Page 101, leave out lines 39 and 40 and insert:
("(ii) for the words from "except that" to the end there shall be substituted ", 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.";").
Page 107, leave out lines 24 to 29.

The noble and learned Lord said: I have already spoken to Amendments Nos. 153D and 153E; and, with the leave of the Committee, I shall move them en bloc. I beg to move.

On Question, amendments agreed to.

Schedule 4, as amended, agreed to.

Schedule 5 [Minor and Consequential Amendments]:

Lord Fraser of Carmyllie moved Amendment No. 153F:


Page 116, line 31, at end insert:
(" . In section 6(3) (jurisdiction and procedure in respect of certain indictable offences committed abroad)—
(a) after the word "section" there shall be inserted "—(a)"; and
(b) for the words "as if" there shall be substituted—
"; or
(b) in such sheriff court district as the Lord Advocate may determine,
as if".
. Section 20(2) (record where accused does not emit declaration) shall cease to have effect.").

The noble and learned Lord said: This amendment makes minor changes to the Criminal Procedure (Scotland) Act 1975, prompted by our ongoing review of criminal procedure, legislation and anticipation of consolidation. I beg to move.

On Question, amendment agreed to.

Lord Rodger of Earlsferry moved Amendment No. 153G:


Page 116, line 38, at end insert:
(" . For section 42 (procedure on resignation, death or removal of Lord Advocate) there shall be substituted the following section—

"Resignation, death or removal of Lord Advocate.

42.—(1) All indictments which have been raised by a Lord Advocate shall remain effective notwithstanding his subsequently having died or demitted office and may be taken up and proceeded with by his successor.

16 Jan 1995 : Column 518


(2) During any period when the office of Lord Advocate is vacant it shall be lawful to indict accused persons in the name of the Solicitor General then in office.
(3) The advocates depute shall not demit office when a Lord Advocate dies or demits office but shall continue in office until their successors receive commissions.
(4) The advocates depute and procurators fiscal shall have power, notwithstanding any vacancy in the office of Lord Advocate, to take up and proceed with any indictment which—
(a) by virtue of subsection (1) above, remains effective; or
(b) by virtue of subsection (2) above, is in the name of the Solicitor General.
(5) For the purposes of this Act, where, but for this subsection, resignation by one Law Officer would result in the offices of both being vacant, he or, where both tender resignations on the same day, the person resigning from the office of Lord Advocate shall be deemed to continue in office until the warrant of appointment of the person succeeding to the office of Lord Advocate is granted.
(6) The Lord Advocate shall enter upon the duties of his office immediately upon the grant of his warrant of appointment; and he shall as soon as is practicable thereafter take the oaths of office before any Secretary of State or any Lord Commissioner of Justiciary.".").

The noble and learned Lord said: Amendment No. 153G may require a little more explanation and Members of the Committee will readily understand my comparative lack of enthusiasm for a provision which contemplates circumstances in connection with the resignation, death or removal from office of the Lord Advocate. Nevertheless, the amendment is necessary. It deals with the problems which can arise in connection with criminal proceedings between the time when a Lord Advocate is appointed and the receipt by the Crown Office of the warrant of appointment signed by the Sovereign. It was established by the case of Halliday in 1891 that a new Lord Advocate cannot function as such until the Royal Warrant appointing him reaches the Crown Office.

Section 3 of the 1887 legislation deals with the situation which can arise on the resignation of a Lord Advocate and provides that the Lord Advocate shall continue in office until his successor receives his appointment. However, that Act does not deal with the distasteful prospect of the death or removal from office of the Lord Advocate. Nor does it explain precisely when a Lord Advocate may be said to have resigned.

The position here is regulated by Section 42 of the Criminal Procedure (Scotland) Act 1975, which also applies to a resignation. This section provides that all indictments raised by a Lord Advocate shall remain effective, notwithstanding his subsequently having died or demitted office and may be taken up and proceeded with by his successor. This deals adequately with indictments which have already been raised. The problem, however, is with new indictments. The strict time limits which apply in Scotland make it necessary to ensure that there cannot be a period of time, even if that period is as short as one day, in which a new indictment cannot be raised.

The 1975 Act partly deals with that problem by allowing persons to be indicted in the name of the Solicitor General when the office of Lord Advocate is vacant. That is certainly a useful provision but one which provides a solution only where there is a Solicitor General. It does not address the situation when both law

16 Jan 1995 : Column 519

officers resign at the same time or where, for whatever reason, there is no Solicitor General when the Lord Advocate demits office.

There also remains the difficulty which the Crown Office and procurators fiscal face in knowing precisely when to stop indicting in the name of the "old" Lord Advocate or Solicitor General and start using the name of the new Lord Advocate.

The solution proposed by Amendment No. 153G is to create a new Section 42 of the 1975 Act, incorporating in part the provisions of the existing section and of Section 3 of the 1887 Act, but providing also, in subsection (5), that where the resignation of one law officer would result in the offices of both being vacant, he or, where both tender resignations on the same day, the person who resigns from the office of Lord Advocate shall be deemed to continue in office until the warrant of appointment of the person succeeding to the office of the Lord Advocate is granted. Subsection (6) provides that the Lord Advocate shall enter upon the duties of his office immediately upon the grant of his warrant of appointment.

I commend the amendments to the Committee while expressing the hope and expectation that these arrangements will not be required for some time yet. I beg to move.

11.15 p.m.

Lord Macaulay of Bragar: These are eminently sensible proposals for the smooth running of the system of criminal law in Scotland. From this side of the Committee perhaps I may say that we do look forward to the demise of the present Lord Advocate but purely in the political sense. Otherwise, we wish him well in his post.

On Question, amendment agreed to.

Lord Fraser of Carmyllie moved Amendment No. 153H:


Page 116, line 38, at end insert:
(". In section 54 ("money" to include coin, bank notes and post office orders), for the words from "all" to the end there shall be substituted "cheques, banknotes, postal orders, money orders and foreign currency".").

The noble and learned Lord said: The amendment to Section 54 of the 1975 Act will substitute for its present definition of "money" the more modern definition recommended by the Scottish Law Commission in its report on Confiscation and Forfeiture, which is being implemented in Part II of the Bill. This is an opportunity not only to modernise but to provide greater consistency in advance of the planned consolidation. I beg to move.

On Question, amendment agreed to.


Next Section Back to Table of Contents Lords Hansard Home Page