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Lord Fraser of Carmyllie moved Amendment No. 154:


Page 116, line 38, at end insert:
(". In section 26 (bail before committal)—
(a) in subsection (2), for the words from "immediately" to "or" there shall be substituted ", on any occasion on which he is brought before the sheriff prior to his committal until liberated in due course of law, to apply"; and

16 Jan 1995 : Column 520


(b) in subsection (3), the words "or justice" shall cease to have effect.").

The noble and learned Lord said: In moving Amendment No. 154 perhaps I may speak also to Amendment No. 183. The case of Campbell Petitioner, which was determined by the appeal court in 1989, revealed a gap in our law. At present, Section 26 of the 1975 Act enables a sheriff to grant bail immediately after an accused has been brought before the court for examination. Section 28 of the 1975 Act deals with the admission to bail of an accused who has already been committed until liberated in due course of law. The case of Campbell involved an accused who had not been committed until liberated in due course of law but who had long since been committed for further examination and had subsequently been arrested for failure to appear for trial. The High Court held that Section 28 did not apply to the accused as she had not been committed for trial and it was too late for Section 26 to apply to her and that her position was one which did not fall within any of the relevant statutory provisions. Accordingly, the sheriff had no power to grant bail to the accused. This amendment to Section 26 makes it competent for a sheriff to consider an application for bail on any occasion on which an accused is brought before the court prior to full committal. Amendment No. 183 is a technical consequential amendment. I beg to move.

On Question, amendment agreed to.

Lord Fraser of Carmyllie moved Amendment No. 154A:


Page 117, line 10, at end insert:
(". In section 78(1) (lodging of record copy of indictment and list of witnesses), for the words from "record" to the end there shall be substituted "the prosecutor shall on or before the date of service of the indictment lodge the record copy of the indictment with the clerk of court before which the trial is to take place, together with a copy of the list of witnesses and a copy of the list of productions.".").

The noble and learned Lord said: This is one of a number of pre-consolidation amendments. I beg to move.

On Question, amendment agreed to.

Lord Fraser of Carmyllie moved Amendment No. 155:


Page 117, line 11, leave out from ("witnesses),") to end of line 12 and insert ("after the word "accused" there shall be inserted ", where the case is to be tried in the sheriff court, at or before the first diet and, where the case is to be tried in the High Court,".").

The noble and learned Lord said: This amendment changes paragraph 7 of Schedule 5 to the Bill. That paragraph amends Section 80 of the 1975 Act by altering the time limits for objecting to witnesses to take account of the new mandatory first diet in the sheriff court. However, there will be no first diet in High Court cases and so in such cases the time limit should continue to be related to the trial diet. This amendment will ensure that that is the case. I beg to move.

On Question, amendment agreed to.

[Amendments Nos. 156 and 157 not moved.]

Lord Fraser of Carmyllie moved Amendment No. 158:


Page 117, line 43, at end insert:

16 Jan 1995 : Column 521


(" . In section 127 (procedure where trial does not take place), after subsection (1) there shall be inserted the following subsection—
"(1ZA) Without prejudice to subsection (1) above, where a trial diet has been deserted pro loco et tempore and the court has appointed a further trial diet to be held on a subsequent date at the same sitting the accused shall require to appear and answer the indictment at that further diet.".").

The noble and learned Lord said: At present, where a trial for whatever reason has to be deserted pro loco et tempore a minimum period of nine days must elapse before the new trial may be commenced. This amendment would allow for the trial to proceed during the same sitting where the court could arrange for the trial to be held on a subsequent date during that same sitting.

Such an arrangement would minimise the inconvenience to those witnesses and others who had been called to the sitting for the trial diet. The provision would allow for the trial to proceed on the basis of the indictment as originally issued. Since witnesses are in any event called to the sitting, the disruption to them is likely to be minimised. The amendment would allow the trial to proceed within the timescale originally envisaged. I beg to move.

On Question, amendment agreed to.

[Amendments Nos. 159 to 162 not moved.]

Lord Macaulay of Bragar moved Amendment No. 163:


Page 118, line 17, leave out paragraph 16.

The noble Lord said: This amendment is grouped with Amendment No. 169. It is designed to delete the new clause proposed by the Bill in relation to the order in which evidence is given for the defence. The view is taken that the accused should not be forced to give evidence first as there may be occasions when he wants to comment on evidence which has been led on his behalf. It would be illogical to force him into the witness box as the first witness before that evidence has been heard. Otherwise we are then faced with the situation of accused persons having to ask for leave to be recalled to deal with evidence led by their own witnesses. That does not seem to be fair justice and may lead to further expense, delay and appeal in the course of criminal trials.

The amendment made to the Act in Schedule 5, paragraph 16 and the corresponding one dealt with in Amendment No. 169 appear to be unnecessary and not necessarily in the best interests of justice. I beg to move.

Lord Fraser of Carmyllie: Paragraphs 16 and 41 of Schedule 5 are the result of a recommendation from the well known Standing Committee on Criminal Procedure (the MacLean Committee). The problem that paragraphs 16 and 41 seek to address is that Sections 142 and 347 of the 1975 Act make it possible for the accused to remain in the dock, listen to the evidence given in his defence and, if he is so minded, alter his evidence in the light of what he has heard. That would obviously be undesirable.

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Paragraphs 16 and 41 substitute a new section for the existing sections to the effect that, except on cause shown, where the accused is to give evidence he should be called as the first witness for the defence.

It may be argued that there will be occasions where it would be unreasonable to insist that the accused must give his evidence first before any other defence witnesses are called; for example where the accused's opinion or comment upon other defence witnesses' evidence is required. It is for that reason that the new Sections 142 and 347 provide for the court to permit, on cause shown, someone other than the accused to be called as the first witness for the defence. That particular exception would seem to cover any of the difficulties which the noble Lord envisages. On that basis I hope that he will feel that he can withdraw his amendment.

Lord Macaulay of Bragar: I see the logic behind what the noble and learned Lord has said. If the accused changes his evidence or his position, having perhaps lodged a special defence and having heard the witnesses not come up to scratch, that would be a matter for the jury to consider should he give evidence. To take the matter to its logical conclusion, if this section is deleted the accused could choose, at the end of having led all his evidence, not to give evidence at all. That would be a matter for him and it would be in keeping with the presumption of innocence and his right to remain silent. I note what the noble and learned Lord has said. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 164 and 165 not moved.]

Lord Fraser of Carmyllie moved Amendment No. 166:


Page 119, line 22, at end insert:
(" . In section 191(4) (effect of probation and absolute discharge) the words "placed on probation or" and "probation order or" shall cease to have effect.").

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

On Question, amendment agreed to.

Lord Fraser of Carmyllie moved Amendment No. 167:


Page 120, line 15, at end insert:
(" . In section 268 (reckoning of time spent on bail pending appeal), in subsection (4)—
(a) after the word "safety" in the first place where it occurs there shall be inserted "or, as respects a child sentenced to be detained under section 206 of this Act, the place directed by the Secretary of State"; and
(b) after the word "safety" in the second place where it occurs there shall be inserted "or, as respects such a child, place directed by the Secretary of State".").

The noble and learned Lord said: Amendment No. 167 seeks to ensure that the position of children sentenced to be detained in criminal procedure is the same as that of prisoners and young offenders, in the event that they are granted interim liberation pending an appeal. The children referred to are those sentenced under Section 206 of the 1975 Act.

The amendment seeks to ensure that the position of child detainees is the same as that which applies to prisoners and young offenders. I beg to move.

16 Jan 1995 : Column 523

On Question, amendment agreed to.

[Amendments Nos. 168 to 170 not moved.]


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