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Lord Macaulay of Bragar: My Lords, I support the approach suggested by the noble and learned Lord, Lord McCluskey. It is well known throughout the world that as soon as the words "reasonable" and "practicable" find a place in the statute book, lawyers sit and clap their hands. Perhaps adoption of the noble and learned Lord's approach would mean that they have nothing to clap about.

Lord Fraser of Carmyllie: My Lords, when I originally moved the amendment I expected there to be cries of "Author!" because in Committee the noble and learned Lord, Lord McCluskey, said:


In such circumstances, the solution which the noble and learned Lord presented was elegant and we were happy to accept it.

On Question, amendment agreed to.

[Amendment No. 21 not moved.]

6 Feb 1995 : Column 37

The Deputy Speaker (Lord Brougham and Vaux): My Lords, I should point out that there is a printing error on the Marshalled List and the amendment should read "Page 8, line 28".

Lord McCluskey moved Amendment No. 22:


Page 8, line 28, at end insert ("but the accused shall not be obliged to answer any such question and if he does not answer that shall not be commented upon by the judge or the prosecutor at any later stage of the proceedings.").

The noble and learned Lord said: My Lords, I apologise for that mistake. I sought to correct it but the correction did not get through.

The amendment is worded in such a way so as to draw attention to the point on which I touched briefly a few moments ago. At this preliminary stage the judge is concerned with procedural matters and matters in relation to the preparation for the trial. I am anxious to have a provision which ensures that an accused person is not obliged to answer questions put to him by the judge at that stage. If he were obliged to answer, that would be an invasion of the right of silence, although not much comment has been made about that.

I insert those words to protect the right of an accused person or the solicitor acting on his behalf to decline to assist the court if assistance has to be refused in relation to the proper exercise of the right of silence. I beg to move.

Lord Fraser of Carmyllie: My Lords, the purpose of Clause 12 is to ensure that cases are as fully prepared as possible before the trial by all parties. Our intention in introducing this clause is to ensure that better use is made of court time, with fewer trials being cancelled at the last minute and fewer victims, witnesses and jurors being inconvenienced.

There appear to be no good reasons why an accused should wish to refuse to answer questions at a first diet. He will not be asked about his defence, although he will have to state his plea. The questions which may be directed to him are questions about the state of preparation of his case. They will be of a procedural nature: for example, whether he has cited all the necessary witnesses and expects them to be available, whether he has received and considered any statements from the prosecution and whether he has agreed any of the facts therein.

There will be no consideration of the substance of the case. So there is no risk that he will prejudice his defence by answering questions. Were there to be such a risk, I should understand the noble and learned Lord's anxiety. We are giving no power to the court to compel an accused to answer such questions. However, to build in a statutory right not to answer questions of such a procedural nature would give quite the wrong impression of the nature of the proceedings and would be likely to undermine the effectiveness, which I believe we are all agreed is both necessary and desirable, of the whole procedure.

Further, it is unlikely that at subsequent proceedings there would be any need to comment on what had happened at the first diet. But a blanket prohibition on comment as proposed would be inappropriate. For example, if an accused person sought an adjournment of

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the trial for reasons which ought to have been apparent earlier, it would seem to me to be extraordinary if the trial judge could not then inquire of the accused why he had not made the court aware, at the earlier diet, of the problem which necessitated adjournment and had thereby inconvenienced not only the court and the prosecution, but also all the witnesses and jurors.

If the amendment were allowed, I would be concerned that it would, as I said, undermine the effectiveness of the whole procedure. With that explanation regarding the limited type of questions that we believe might occasionally be asked, I urge the noble and learned Lord to withdraw his amendment.

Lord McCluskey: My Lords, I shall certainly do so. However, in turn, I urge the Minister to think again on the matter. If the noble and learned Lord looks at the new Section 75A to the 1975 Act, he will see from paragraph (b) (at the top of page 8 of the Bill) that one of the things that the court has to ascertain so far as is reasonably practicable is,


    "the extent to which the prosecutor and the accused have complied with the duty under Section 84A(1)".

The latter is a new section which is being put in the 1975 Act under Clause 11. The new section imposes upon the accused a duty to,


    "identify any facts ... which he would, apart from this section, be seeking to prove".

That seems to me to be a formal imposition on an accused person to disclose facts which he is seeking to prove, providing that they meet the other elements of the section. It also appears to me to be possibly tainted by the accusation that might be made; namely, that it is an invasion of the accused's right of silence.

As always happens after a Bill has been scrutinised in this House, I have no doubt that the Government will look again at the wording. I hope that the Minister will bear that in mind and ascertain whether a different form of wording would be appropriate. I have no objection to the point in principle. I entirely agree that procedural matters should, if possible, be sorted out so that the trial becomes a real bare knuckle contest if that is what it has to be under the adversarial system. However, I urge the Government not to close their minds to the possibility of improving the wording. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 23 not moved.]

Lord Rodger of Earlsferry moved Amendment No. 24:


Page 9, line 12, after ("ascertain") insert (", so far as is reasonably practicable,").

On Question, amendment agreed to.

[Amendment No. 25 not moved.]

Clause 13 [Intermediate diet in summary proceedings]:

Lord Rodger of Earlsferry moved Amendment No. 26:


Page 9, line 42, after ("inserted") insert (", so far as is reasonably practicable,").

On Question, amendment agreed to.

6 Feb 1995 : Column 39

Lord Rodger of Earlsferry moved Amendment No. 27:


After Clause 13, insert the following new clause:
("Delay in trial

Calculation of specified period where accused detained outside Scotland

.In section 101 of the 1975 Act (prevention of delay in trials), after subsection (1) there shall be inserted the following subsection—
"(1A) In calculating the period of 12 months specified in subsection (1) above there shall be left out of account any period during which the accused is detained, other than while serving a sentence of imprisonment or detention, in any other part of the United Kingdom or in any of the Channel Islands or the Isle of Man in any prison or other institution or place mentioned in subsection (1) or (1A) of section 29 of the Criminal Justice Act 1961 (transfer of prisoners for certain judicial purposes)."").

The noble and learned Lord said: My Lords, your Lordships will recall the debate in Committee on the Rowan case, which involved a prisoner held on remand in England being unable to be transferred to Scotland. The Crown had to seek an extension to the time limits for commencement of the trial in Scotland to ensure that the case would not be time barred.

The noble and learned Lord, Lord McCluskey, promoted an amendment in Committee which I accepted in principle. The amendment promotes a similar solution to that envisaged by the noble and learned Lord. It differs only in minor drafting respects and extends the provision to include the Channel Islands and the Isle of Man.

As I mentioned in Committee, the Government look on this as in interim solution to the problems which have been identified. To resolve all the difficulties will require amendment to United Kingdom legislation which is beyond the scope of the Bill. Nevertheless, the amendment will address the implications for Scottish proceedings. I beg to move.

Lord McCluskey: My Lords, I can certainly welcome the new clause. I also welcome the remarks just made by the noble and learned Lord the Lord Advocate; namely, that it is only a temporary measure. In Scotland, we are very proud of the fact that we bring people to trial swiftly. However, the real answer is to find a means whereby persons who are detained in a prison or some such place in the United Kingdom, but outside of Scotland, can be brought to Scotland to face trial within the time limits imposed by Scottish procedure.

I recognise that we are discussing a matter that has to be addressed in UK legislation. However, there seems to be a good deal of legislation in relation to criminal justice in the United Kingdom. Therefore, there should be an early opportunity to achieve that aim. I urge the noble and learned Lord to press that suggestion upon his colleagues in government. In the meantime, I welcome the amendment.

On Question, amendment agreed to.

Clause 14 [Uncontroversial evidence]:

[Amendment Nos. 28 to 31 not moved.]


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