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Lord Rodger of Earlsferry: My Lords, I believe that I have already spoken to this amendment.

Lord McCluskey: My Lords, in the light of what has been said, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 10 [Judicial examination]:

Lord Macaulay of Bragar moved Amendment No. 7:

Leave out Clause 10.

The noble Lord said: My Lords, again this is an issue that was debated at length at Committee stage. It has been retabled for the purpose of asking the Government to think again, as they have been asked to think again about the previous matters as regards jury service. The

6 Feb 1995 : Column 26

Minister has Amendment No. 8 standing in his name which has the same effect as my amendment but it adds a new clause. I wish to speak to my own amendment at this stage.

The point of this particular amendment relates to what is called in Scotland judicial examination, where an accused person can be brought before a sheriff at a very early stage in the proceedings to be questioned by the prosecutor. That is the important phrase; namely, to be questioned by the prosecutor for certain reasons and for questions to be asked eliciting any denial, explanation, justification or comment by the accused on charges and so on.

The Government are attempting to bring into that area the question of an admission by an accused. I accept that the clause does not mention an admission of guilt. The phraseology is "eliciting any admission", which suggests to me that the prosecutor has the right to ask questions, apart from the right of the defence, in order to clarify matters at the end of the examination. The prosecutor is going to be entitled to elicit confessions of guilt. That suggestion substantially hits at the so-called right to silence. The judicial examination procedure erodes that anyway.

I have always held—and perhaps I am wrong—that the right to silence does not exist in Scotland anyway since the judicial examination procedure was brought into play. At the time objection was taken to the whole procedure in that it was quite wrong that within 24 hours of a serious crime having been committed the accused and his solicitor, perhaps having only a copy of the complaint to the petition, were wheeled in before a sheriff to be questioned by the prosecutor, who has in his possession no doubt a very full police report containing the background to the case, to which the accused has no access whatsoever. The prosecutor may also have supporting statements. The accused then has the right to consult a solicitor before answering detailed questions about where he was, what he did, who he was with, and so on.

In my submission, that provision will create a difficulty which need not exist because, as matters stand at present, there is nothing to prevent the accused making an admission anyway. To use a colloquialism, if the accused wants "to put his hand up" at a judicial examination and say to the procurator fiscal, in the presence of a sheriff, "Forget all this; I did it", there is nothing in the present procedure to stop him doing that. This provision, however, gives the procurator fiscal the power to wheedle an admission of guilt out of the accused in circumstances where the lawyer is placed in a difficult situation. We all know—everyone knows—that a person can admit to doing something but not be legally guilty of it. It is the loose use of the word "admission" that bothers me. Indeed, we must ask, "an admission of what?" What is behind the present phraseology?

Some of those who will be brought before a sheriff will be of limited intelligence—that is not their fault—and will therefore be unable to instruct a lawyer or to understand what is going on. Some people may be completely fazed by the trauma of the event in which they may have been involved. They may have been

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involved in a domestic incident and their emotional disturbance and the pressure to which they may have been subjected cannot even be imagined by the sheriff or procurator fiscal or even by the solicitor who has been allocated to that individual. Not many people are capable of rational thought within 24 or 48 hours of a trauma.

Solicitors are being put in a difficult position. They are being forced to advise a client (who may be asked something) without having had a chance to consider the evidence although, on the face of it, an admission may point to a guilty verdict. The client may have a proper explanation.

The clause will place a heavy burden on the duty solicitor and the accused and, in my submission, may act very much against the interests of justice. I beg to move.

The Earl of Balfour: My Lords, unless the noble Lord, Lord Macaulay, is objecting to the new clause which it is proposed to insert into the Bill under Amendment No. 8, I cannot see why we need to discuss Clause 10 because it will disappear anyway.

Lord Macaulay of Bragar: My Lords, I take the noble Earl's point, but I wanted to argue the point that Clause 10 should disappear. We shall discuss the alternative in due course when the Minister moves Amendment No. 8.

Lord Fraser of Carmyllie: My Lords, we had an interesting debate on this in Committee. That debate was distinguished by the contribution of the noble and learned Lord, Lord McCluskey, who set out what takes place in a judicial examination and the weakness in it which Clause 10 now seeks to remedy. I am bound to say that I do not think that I can improve on the noble and learned Lord's explanation. However, I am somewhat surprised that the noble Lord, Lord Macaulay, has sought to return to this subject.

With your Lordships' forbearance, perhaps I may reiterate that Clause 10 does not represent an attack on the rights of the accused. It certainly does not affect his right to remain silent. He can refuse to admit an allegation just as easily as he can deny it at present. What the clause does do is enable the procurator fiscal to ask questions which the accused will be better able to understand. The noble Lord said that some of those who come into court for judicial examination may not always be of the highest intelligence. I would argue as vigorously as I could that this change will make it easier for such individuals to understand what is going on. It will also be easier for juries to understand what has transpired when they come to consider the transcript of the examination.

There is nothing dramatic or radical about the proposal. It gives full effect to the recommendations made by the Thomson Committee in 1975. I hope that the noble Lord will appreciate that there is no major attack on the right to silence or anything fundamental like that. With that explanation, I hope that he will feel able to withdraw the amendment.

Lord Macaulay of Bragar: My Lords, I have heard the noble and learned Lord's explanation. It was the

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same explanation as we heard previously. As I have said, I do not consider that the right to silence exists in any case—nor do I consider that this provision advances the cause of justice in Scotland and I therefore wish to take the opinion of your Lordships' House.

4.16 p.m.

On Question, Whether the said amendment (No. 7) shall be agreed to?

Their Lordships divided: Contents, 93; Not-Contents, 117.

Division No. 1


Acton, L.
Addington, L.
Airedale, L.
Ashley of Stoke, L.
Avebury, L.
Barnett, L.
Beaumont of Whitley, L.
Birk, B.
Blackstone, B.
Bottomley, L.
Broadbridge, L.
Brooks of Tremorfa, L.
Bruce of Donington, L.
Carmichael of Kelvingrove, L.
Castle of Blackburn, B.
Cledwyn of Penrhos, L.
Clinton-Davis, L.
Cocks of Hartcliffe, L.
David, B.
Dean of Beswick, L.
Dean of Thornton-le-Fylde, B.
Desai, L.
Diamond, L.
Donaldson of Kingsbridge, L.
Dormand of Easington, L.
Eatwell, L.
Elis-Thomas, L.
Ennals, L.
Ezra, L.
Falkender, B.
Falkland, V.
Farrington of Ribbleton, B.
Gallacher, L.
Geraint, L.
Gladwin of Clee, L.
Gladwyn, L.
Graham of Edmonton, L. [Teller.]
Greene of Harrow Weald, L.
Gregson, L.
Grey, E.
Harris of Greenwich, L.
Haskel, L.
Hilton of Eggardon, B.
Hollis of Heigham, B.
Howie of Troon, L.
Hutchinson of Lullington, L.
Jay of Paddington, B.
Jeger, B.
Jenkins of Hillhead, L.
Jenkins of Putney, L.
Judd, L.
Kilbracken, L.
Listowel, E.
Lockwood, B.
Longford, E.
Lovell-Davis, L.
Macaulay of Bragar, L.
Mallalieu, B.
Mar and Kellie, E. [Teller.]
Mason of Barnsley, L.
McCarthy, L.
McGregor of Durris, L.
McIntosh of Haringey, L.
Merlyn-Rees, L.
Milner of Leeds, L.
Molloy, L.
Monkswell, L.
Morris of Castle Morris, L.
Nicol, B.
Ogmore, L.
Peston, L.
Plant of Highfield, L.
Prys-Davies, L.
Richard, L.
Sainsbury, L.
Seear, B.
Sefton of Garston, L.
Serota, B.
Shepherd, L.
Stallard, L.
Stedman, B.
Stoddart of Swindon, L.
Strabolgi, L.
Taylor of Blackburn, L.
Tope, L.
Tordoff, L.
Turner of Camden, B.
Varley, L.
Wallace of Coslany, L.
White, B.
Williams of Crosby, B.
Williams of Elvel, L.
Winchilsea and Nottingham, E.


Aberdare, L.
Ailesbury, M.
Ailsa, M.
Allenby of Megiddo, V.
Ampthill, L.
Balfour, E.
Belhaven and Stenton, L.
Blaker, L.
Blyth, L.
Boardman, L.
Boyd-Carpenter, L.
Brabazon of Tara, L.
Braine of Wheatley, L.
Bridgeman, V.
Brigstocke, B.
Brougham and Vaux, L.
Butterworth, L.
Caithness, E.
Campbell of Croy, L.
Carnegy of Lour, B.
Carnock, L.
Charteris of Amisfield, L.
Chesham, L.
Clanwilliam, E.
Cranborne, V. [Lord Privy Seal.]
Cross, V.
Cumberlege, B.
Davidson, V.
Denham, L.
Dixon-Smith, L.
Ellenborough, L.
Elles, B.
Elliott of Morpeth, L.
Elton, L.
Ferrers, E.
Flather, B.
Forbes, L.
Fraser of Carmyllie, L.
Gainsborough, E.
Gardner of Parkes, B.
Geddes, L.
Goschen, V.
Gray of Contin, L.
Gridley, L.
Halsbury, E.
Harding of Petherton, L.
Harmar-Nicholls, L.
Harrowby, E.
Hayhoe, L.
Henley, L.
Hives, L.
Holderness, L.
Hooper, B.
Hothfield, L.
Howe of Aberavon, L.
Howe, E.
Inglewood, L. [Teller.]
Kinnoull, E.
Lauderdale, E.
Lindsay, E.
Long, V.
Lucas, L.
Lyell, L.
Mackay of Ardbrecknish, L.
Macleod of Borve, B.
Macpherson of Drumochter, L.
Marlesford, L.
Merrivale, L.
Mersey, V.
Miller of Hendon, B.
Milverton, L.
Montgomery of Alamein, V.
Morris, L.
Mottistone, L.
Mountevans, L.
Mowbray and Stourton, L.
Moyne, L.
Munster, E.
Nelson, E.
O'Cathain, B.
Orr-Ewing, L.
Palmer, L.
Pearson of Rannoch, L.
Pender, L.
Perth, E.
Pike, B.
Quinton, L.
Rankeillour, L.
Renton, L.
Renwick, L.
Rodger of Earlsferry, L.
Rodney, L.
Saltoun of Abernethy, Ly.
Seccombe, B.
Selborne, E.
Shannon, E.
Shrewsbury, E.
Skelmersdale, L.
Slim, V.
St. Davids, V.
Strathclyde, L. [Teller.]
Strathcona and Mount Royal, L.
Sudeley, L.
Swansea, L.
Swinton, E.
Terrington, L.
Teviot, L.
Thomas of Gwydir, L.
Trumpington, B.
Ullswater, V.
Vivian, L.
Wade of Chorlton, L.
Wharton, B.
Whitelaw, V.
Windlesham, L.
Wise, L.
Wynford, L.

Resolved in the negative, and amendment disagreed to accordingly.

6 Feb 1995 : Column 29

4.25 p.m.

Lord Rodger of Earlsferry moved Amendment No. 8:

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