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Lord McCluskey: My Lords, I support the amendment. I had intended to put down one in similar terms. Although the noble and learned Lord the Lord Advocate has presented the matter as a somewhat technical one, its basis is that it imposes upon the defence a duty to give advance notice of a particular line of defence, effectively; for example, as in the Ross case, "I did these things, but I am not criminally responsible because without my knowledge somebody else laced my drink with LSD" or some such substance. It is only right and fair that if such a defence is to be advanced, notice of it should be given before the trial because there may well be matters to be investigated. I am all in favour of the trial itself being as fair as possible and that we should get rid of all possibilities of ambush. For those reasons, I support the amendment.

Lord Macaulay of Bragar: My Lords, I add my support for the amendments in the area of technical defences. I agree with the noble and learned Lord, Lord McCluskey, that both lines will require a substantial amount of investigation as in cases such as the one he has instanced. The law on these two defences—if they were indeed defences at one time—has been clouded by legal and practical obscurity. I hope that the application of this clause will clear the skies.

On Question, amendment agreed to.

Lord McCluskey had given notice of his intention to move Amendment No. 10:


After Clause 10, insert the following new clause:

("Investigation of line of defence

.—(1) In section 20A of the 1975 Act, after subsection 3, there shall be inserted—
"(3A) The accused, before being asked any question by the prosecutor, shall be told by the sheriff that, if he answers any question in such a way as to disclose a line of defence (as for example alibi, incrimination, or the consent of an alleged victim), being a line of defence which is capable of being investigated at that time, the prosecutor will then be under a legal duty to investigate that line of defence thoroughly and as soon as is reasonably practicable".
(2) After subsection (4) there shall be inserted—
"(4A) After any examination under this section has been completed it shall be the duty of the prosecutor, as soon as is reasonably practicable, personally or through his officers or officers of police, to investigate thoroughly any line of defence which is capable of being investigated at that time, provided it is a line of defence which has been disclosed by the accused in answer to any questions put to him by the prosecutor, and it shall be the duty of the prosecutor to disclose the full results of that investigation to the accused not later than the date of service of the indictment under section 70 of this Act".").

The noble and learned Lord said: My Lords, in the light of what has just happened, I shall not move the amendment.

[Amendment No. 10 not moved.]

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Clause 11 [Agreement of evidence]:

Lord Rodger of Earlsferry moved Amendment No. 11:


Page 6, line 34, after ("accused") insert ("(or each accused if more than one)").

The noble and learned Lord said: My Lords, I shall speak also to Amendments Nos. 13 and 19. The amendments are of a technical nature. They amend the new solemn and summary provisions which impose a duty to agree evidence to ensure that where there are several co-accused, all of the parties to proceedings will be under that duty.

The duty under Clause 11 is imposed only upon those accused who are legally represented. The purpose of these amendments is to ensure that in proceedings where there are several co-accused, one or more of whom is not legally represented, the duty will not apply. It would be illogical to impose a duty to agree evidence on one co-accused if that evidence would then have to be led orally in relation to another co-accused. I beg to move.

On Question, amendment agreed to.

Lord McCluskey moved Amendment No. 12:


Page 6, line 38, leave out ("unlikely to") and insert ("may not").

The noble and learned Lord said: My Lords, I return briefly to this matter which I mentioned in Committee. Under the system which the Bill is introducing or taking forward it is open to parties to reach agreement upon certain matters. I believe that parties should not only be free to reach agreement; they should be encouraged as much as possible to reach agreement. Accordingly, by removing the words "unlikely to" and substituting "may not", I am seeking to widen or increase the possible areas in which the parties may be able to reach agreement. If one side or the other does not know whether a particular fact which he wishes to establish is likely to be disputed, he says, "Well, it may be, it may not be, but I shall put it forward and if the other side agrees, well and good, but if it does not, then no harm has been done". That is a straightforward matter.

In dealing with the matter in Committee, the noble and learned Lord the Lord Advocate (at col. 376 of the Official Report) was concerned that such an amendment would impose burdensome duties upon the parties. I am sure that the parliamentary draftsmen could deal with that and that it would be possible to frame the matter so that it was an encouragement rather than a positive duty.

I am interested in achieving the maximum amount of agreement possible so that the trial can concentrate on those matters which are truly in issue. I should mention that the same point is covered by Amendment No. 29 which stands in my name. However, that is different because it is not affected by the point made by the noble and learned Lord the Lord Advocate in relation to the imposition of burdensome duties.

It may be that the Government are not happy to accept the amendment at the moment, but I hope that in the future they will consider whether they can widen the scope of the clause along the lines indicated. I beg to move.

Lord Rodger of Earlsferry: My Lords, I have listened carefully to what the noble and learned Lord,

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Lord McCluskey, has said, but we remain of the view that the drafting which we have adopted puts the balance correctly. For the reasons which I gave in Committee, we believe that it is desirable that a duty should be imposed in certain circumstances. We believe that the correct balance should be achieved and that, as Clause 11 imposes a duty, that duty should not be imposed where the results are not likely to be successful. That is why the Bill is drafted as it is. If people wish to go further, they are free to do so, but it is in that area only in which the duty is imposed. I shall reflect upon what the noble and learned Lord said, but we believe that the duty is correctly described in that way.

Lord McCluskey: My Lords, in the light of the encouraging words at the end of that answer, I am happy to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Rodger of Earlsferry moved Amendments Nos. 13 to 19:


Page 6, line 39, after ("party") insert ("(or by any of the other parties)").
Page 7, line 2, leave out from first ("the") to ("shall") and insert ("agreement of the other party (or each of the other parties) to them; and the other party (or each of the other parties)").
Page 7, line 5, leave out ("against an accused who") and insert ("as respects which the accused (or any of the accused if more than one)").
Page 7, line 14, after ("accused") insert ("(or each accused if more than one)").
Page 7, line 19, after ("party") insert ("(or by any of the other parties)").
Page 7, line 25, leave out from first ("the") to ("shall") and insert ("agreement of the other party (or each of the other parties) to them; and the other party (or each of the other parties)").
Page 7, line 28, leave out ("against an accused who") and insert ("as respects which the accused (or any of the accused if more than one)").

On Question, amendments agreed to.

Clause 12 [First and preliminary diets in solemn proceedings]:

Lord Fraser of Carmyllie moved Amendment No. 20:


Page 7, line 43, after ("shall") insert (", so far as is reasonably practicable,").

The noble and learned Lord said: My Lords, in moving this amendment, I shall speak also to Amendments Nos. 24 and 26. These amendments take account of a suggestion made by the noble and learned Lord, Lord McCluskey, in Committee. The new duty imposed upon the court by Clauses 12 and 13 will be qualified by the words:


    "so far as is reasonably practicable".

That change removes the imposition of an absolute duty to ascertain something which the court may not in all cases be able to ascertain, while ensuring that the court

6 Feb 1995 : Column 36

will have to make every effort to ascertain whether the case is likely to proceed on time in the interests of the witnesses and others who may otherwise be called to court unnecessarily. I beg to move.

4.45 p.m.

Lord McCluskey: My Lords, I am happy to see the Government stumbling towards the light. I still believe that my solution is rather more elegant than that which is proposed by the Government. The problem with the words,


    "so far as is reasonably practicable",

is that, when they are inserted in a new Act of Parliament, they trail clouds and clouds of earlier decisions by the courts all around the world and certainly on both sides of the Border in the United Kingdom. Arguments start about what is meant by those words.

My solution, which appears in Amendment No. 21, seeks merely to change the duty from a duty to ascertain something to a duty in inquire. The point is that, if the court has a duty, even if it is qualified by the words proposed by the Minister, to ascertain something, that implies a corresponding duty on the defence to take part in the exercise. It appears to me that that is an insidious way in which to invade the right of silence and a much more insidious way than anything proposed in relation to the matters which we discussed earlier.

I still hope that the Government will not close their minds on the matter altogether and that they will consider whether or not my solution is rather more elegant. However, I do not oppose the Government's amendment, but I hope that they will eventually see the light.


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