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Leave out Clause 10 and insert the following new clause:

Judicial Examination

(" .—(1) Section 20A of the 1975 Act (examination of accused by prosecutor before sheriff) shall be amended as follows.
(2) In subsection (1)—
(a) after the words "eliciting any" there shall be inserted "admission,"; and
(b) in paragraph (i) of the proviso to paragraph (a), for the words from "category" to the end there shall be substituted "defence".
(3) After subsection (3) there shall be inserted the following subsection—
"(3A) The accused shall be told by the sheriff that if he answers any question put to him at the examination under this section in such a way as to disclose an ostensible defence, the prosecutor shall be under the duty imposed by subsection (7) below.".
(4) After subsection (6) there shall be inserted the following subsections—

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"(7) Without prejudice to any rule of law, on the conclusion of an examination under this section the prosecutor shall secure the investigation, to such extent as is reasonably practicable, of any ostensible defence disclosed in the course of the examination.
(8) The duty imposed by subsection (7) above shall not apply as respects any ostensible defence which is not reasonably capable of being investigated.".").

The noble and learned Lord said: My Lords, in Committee the noble and learned Lord, Lord McCluskey, brought forward an amendment in rather similar terms to this, the general thrust of which I was then happy to accept in principle. He has again tabled an amendment in somewhat similar terms, but I hope that he may feel able to withdraw his amendment in the light of this one.

Amendment No. 8 imposes a duty on the prosecutor to investigate any ostensible defence disclosed at judicial examination, and requires the sheriff to inform the accused of that duty.

We have certain reservations about breaking down into specific statutory duties the procurator fiscal's broad duties to act fairly and to prosecute in the public interest. However, in the particular circumstances of a judicial examination it may be worth pointing out to an accused person that any defence of this kind which he or she discloses will be investigated.

Lord Macaulay of Bragar: My Lords, I am sorry to interrupt the noble Lord—perhaps it is my fault—but the last Division we had was on Amendment No. 7. We seem to have jumped to Amendment No. 10. Amendment No. 8 is about judicial examination, not investigating lines of defence, which is Amendment No. 10; perhaps I misheard—there was a lot of noise going on when the noble and learned Lord stood up—but could we just be clear that we are discussing Amendment No. 8?

Lord Rodger of Earlsferry: My Lords, we are discussing Amendment No. 8. It relates to investigating matters as a result of lines disclosed at judicial examination.

As I was saying, the fact that attention is drawn to this matter at judicial examination may indeed make the advantages of declaring a particular defence at that stage more apparent. Nonetheless, despite any reservations we may have, we feel it right to put it down in this particular way.

We have not gone further to include a specific duty on the prosecutor to disclose the results of the investigation to the accused. If the procurator fiscal's investigation uncovers evidence which may be of assistance to the accused, he already considers himself—or should consider himself —to be under a duty to make the existence of such evidence known to the accused and his advisers.

I would expect all prosecutors to apply that principle in this connection. If they do so, the full purpose and spirit underlying the amendment of the noble and learned Lord, Lord McCluskey, will be met. We do not think it necessary or particularly desirable to enshrine in statute what would, after all, simply be a particular application of the general principle. It is the general principle which is important and should be observed.

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Moreover, any statutory formulation which required a prosecutor to make evidence available in every case might be contrary, in certain circumstances, to the public interest—for example, if disclosure might breach particular confidences or endanger witnesses. It is best to leave the issue of disclosure of the results on the broader, general basis, and it is for that reason that that particular matter is not covered by the clause. However, the general thrust of the clause reflects the spirit underlying the amendment of the noble and learned Lord, Lord McCluskey, and we are happy to accept the spirit of that clause. I beg to move.

Lord McCluskey: My Lords, perhaps I may speak to this amendment. First, I am grateful to the Government for accepting the general thrust of what I proposed. I agree entirely with the Lord Advocate's hesitancy in trying to break down the duties of the prosecutor because it might lead to an argument that unless a prosecutor has duties specified his general duty of fairness does not exist; and we would not wish to get to that position.

However, the amendment imposes a responsibility on the sheriff to do something; and the duty of the prosecutor, in a sense, flows from that—the duty to secure, to the extent it is reasonably practicable the investigation of the ostensible defence disclosed.

I am perfectly happy with what is now proposed. I accept that my wording—it imposed an absolute duty upon the prosecutor to disclose the full results within a specified time—might go too far in specific cases. However, I ask the noble and learned Lord the Lord Advocate to consider preparing a directional instruction to fiscals who have to conduct judicial examinations, so that they will know the thrust of what he has told your Lordships' House today; namely, that the prosecutor will disclose to the defence the results of the investigation. I hope that the noble and learned Lord will endeavour to word the instruction so as to show that that duty should be performed as soon as may be to give the defence time to investigate the matter.

It could well be that in a particular case the accused is deceiving his own defence lawyers. They do not have the legal aid facility, or any other facility, at that stage to make a thorough investigation. The fiscal investigates and comes up with the results which show that the man is not telling the truth. That is then disclosed to his lawyers. They go to him and point out the error of his ways. That may lead to an earlier plea. I am sure that from many points of view this is a desirable improvement. I did not speak upon the last matter. I have already done so, and I do not propose to add anything to that.

The general effect of the amendments, taken together, is not to make the position of the accused in relation to the right of silence in Scotland any worse; in fact it makes it better. I congratulate the Government on moving in that direction.

Lord Rodger of Earlsferry: My Lords, I shall of course be happy to consider an instruction of the type that the noble and learned Lord indicated.

On Question, amendment agreed to.

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4.30 p.m.

Lord Rodger of Earlsferry moved Amendment No. 9:

After Clause 10, insert the following new clause:

Requirement to give notice of defence of automatism or coercion

(" . After subsection (1) of section 82 of the 1975 Act (requirement to give notice of plea of special defence, etc.) there shall be inserted the following subsection—
"(1A) Subsection (1) above shall apply to a defence of automatism or coercion as if it were a special defence.".").

The noble and learned Lord said: My Lords, for the convenience of the House, I shall speak also to Amendments Nos. 104 and 105. The amendments address a very particular aspect of Scottish criminal law and procedure which will be familiar to a number of your Lordships; in particular, the noble and learned Lord, Lord McCluskey, will recognise to some extent the genesis of part of the amendment in the case of Ross v. H.M. Advocate upon which he sat in 1991. In that case, the Appeal Court held that "automatism"—using the shorthand—was a matter which could in particular circumstances constitute a defence.

During the course of argument on that case the question of notification of such a defence was raised. Three of the five appeal judges variously expressed the view that pre-trial notice of the defence of automatism should be required. The noble and learned Lord, Lord McCluskey, suggested that adding to the list of defences known as "special defences" merited fuller debate. The justification for the notification requirement in the case of the four existing special defences is to give fair notice to the Crown of an intention to lead evidence for such a defence.

I am aware that there exists a mechanism in Section 149A of the 1975 Act which allows the trial judge to permit the Crown to lead further evidence in the light of defence evidence or argument which could not have been anticipated. But, as was recognised by the Lord Justice General in the Ross case, that can be a somewhat unsatisfactory and inconvenient solution. The weight of opinion in that case indicated that it might be preferable to make the defence of automatism one of the special ones in the sense that notification should be given. That is what the amendment seeks to do.

One would therefore have to consider what would happen if for some reason notification was not given, because one is aware that that can occasionally happen. The question therefore arises as to what should then be the position. In practice, even in the case of special defences, the Crown has, from time to time, waived the necessary notice. But some doubt has been expressed about the competency of doing so. Therefore it has been thought desirable on this occasion while the matter of special defences is being looked at to amend the legislation to make it quite clear that the court can waive the notification requirement when it is considered appropriate to do so. That is why we have tabled the amendments to Schedule 5.

Also included in this group of amendments is a pre-consolidation amendment to require the defence in High Court cases to give 10 days' notice of its witnesses and productions. That is in line with the existing requirement on the defence to lodge any special defence

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10 days before the trial starts. I hope that the House will feel able to support the amendments on the basis that they should facilitate the smoother conduct of trials and assure fairness both to the Crown and to the accused. I beg to move.

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