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Lord Rodger of Earlsferry moved Amendment No. 51:


Page 16, line 44, leave out from ("women;";") to end of line 46 and insert:
("(b) after sub-paragraph (i) of paragraph (g) there shall be inserted the following sub-paragraphs—
"(ia) section 2A (incest);
(ib) section 2B (unlawful sexual intercourse with stepchild);
(ic) section 2C (unlawful sexual intercourse of person in position of trust with child under 16);"; and
(c) after sub-paragraph (iv) of that paragraph there shall be inserted the following sub-paragraph—
"(iva) section 7 (gross indecency between males)".
(2) In section 346A(2) of that Act (corresponding provision in relation to summary proceedings)—
(a) after paragraph (b) there shall be inserted the following paragraph—
"(ba) clandestine injury to women;";

6 Feb 1995 : Column 47

(b) after sub-paragraph (i) of paragraph (f) there shall be inserted the following sub-paragraphs—
"(ia) section 2A (incest);
(ib) section 2B (unlawful sexual intercourse with stepchild);
(ic) section 2C (unlawful sexual intercourse of person in position of trust with child under 16);"; and
(c) after sub-paragraph (iv) of that paragraph there shall be inserted the following sub-paragraph—
"(iva) section 7 (gross indecency between males)".").

On Question, amendment agreed to.

[Amendment No. 52 not moved.]

Clause 26 [Comment by prosecutor on accused's failure to give evidence]:

Lord Macaulay of Bragar moved Amendment No. 53:


Leave out Clause 26.

The noble Lord said: My Lords, there was considerable debate about this proposal at Committee stage and I do not intend to go over the same ground again. The amendment stands in my name and the names of my noble friend Lord Carmichael and the noble Earl, Lord Mar and Kellie. It seeks to delete the Government's proposal that a prosecutor should be able to comment on an accused's so-called failure to give evidence. The Law Society of Scotland disagreed with the proposal in response to the Scottish Office consultation paper on the right to silence and other matters.

Without going over old ground, at present the prosecutor can comment on the fact that the Crown evidence is uncontradicted. Allowing the prosecutor to comment beyond the present provision is a dangerous intrusion into the law, in my submission to noble Lords. There is no reason why a prosecutor should have the right unless we go the whole road and say that the so-called failure of an accused person to give evidence will, per se, establish any material fact in the Crown case. What we will end up with is a porridge of instructions given to the jury by the judge.

The judge has to take on board not only his own onerous duties in heavy cases but a duty to control the prosecutor. Obviously he cannot control the prosecutor in the course of the prosecutor's remarks and would have to deal with the matter in the course of his charge to the jury. If the prosecutor makes improper remarks or remarks without justification about the accused not going into the witness box, at the close of the prosecutor's case the defence will seek to lead further evidence. That would create other difficulties in the proper administration of justice. As the Minister said at an earlier stage in the consideration of the Bill, we are all anxious to streamline the process of justice in Scotland. In my view, Clause 26 drives a coach and horses through the general provisions of the law in Scotland at the moment.

The amendment has been put down again deliberately to ask the Government to consider further consultation with the concerned parties, for example, the Law Society, the Law Commission, Bar associations, the Faculty of Advocates and so on. I do not know whether

6 Feb 1995 : Column 48

there is a body representing accused or convicted persons apart from themselves. I do not ask for a Royal Commission because we know what happens to them: they disappear into the mist, like John Wayne riding off into the sunrise at the end of a Western. Then he suddenly reappears in the next film. I suggest that there would be no harm at this stage in the Government taking on board the suggestion to convene a meeting of all interested parties and delaying the matter, which will, of course, be considered again in another place. I ask them to withdraw their proposal and to support my amendment. I beg to move.

The Earl of Mar and Kellie: My Lords, I wish to continue to record my reluctance and caution about the inclusion of Clause 26 in the Bill. I fear that there may be a possible erosion of the accused's rights and for that reason I continue to oppose the inclusion of the clause in the Bill.

Lord McCluskey: My Lords, I have already sought to make my position plain. I support the amendment which the Government propose to the law in this regard. I cannot see that it is an invasion of the right of an accused person. It is the removal of an artificial restriction upon what one would sensibly expect —namely, that the prosecutor should draw attention to that which is obvious.

There is nothing more obvious to a jury when they have sat in a criminal court for two or three days or two or three weeks and observed the evidence being given against the accused person. They reach the stage when the accused has the opportunity to go into the box and give evidence. If he does not do so, then of course the jury observe that. They do not need to be told by judges or by others, but in certain cases the very absence of that evidence might be of some significance in determining what inferences should be drawn from the other evidence. Silence cannot add to the evidence which is available to the jury, but the absence of evidence from the accused to explain facts which he ought to be able to explain should be a matter on which the prosecutor can comment.

All I am interested in is that trials should be real and that we should remove artificial restrictions. The law as at present worded in the 1975 Act contains an artificial restriction of long standing. I am happy that the Government should continue with the exercise of removing it.

Lord Rodger of Earlsferry: My Lords, the Government will continue with that exercise because we remain satisfied that the position is as the noble and learned Lord, Lord McCluskey, indicated. It is important to remember that we are not changing the law on sufficiency of evidence. That remains exactly the same. We are not introducing any new test to be applied by judges in charging juries. That remains exactly the same as it has been developed by the courts. All that we are doing is to allow the prosecutor to make a comment where it is appropriate. If the prosecutor goes too far, he may be corrected by the judge and the matter can be dealt with in that way. If he goes so far that the matter

6 Feb 1995 : Column 49

is somehow incurable, that could be dealt with by the trial judge saying that the case should be deserted. Alternatively, it could be dealt with in the Appeal Court.

I do not believe that there are likely to be frequent occurrences. On the contrary, I believe that we shall find that, just as the judge may make an appropriate comment, so in future the prosecution will and the defence will then be able to deal with it. It will merely be an issue like any other in the case and that is the correct way to deal with it.

Lord Macaulay of Bragar: My Lords, I am interested in the noble and learned Lord's explanation. I notice that he said that the Government's proposal allows the prosecutor "to make a comment". That phrase was used by the noble Lord, Lord Hutchinson of Lullington, in the course of his contribution during the Committee stage, as I recollect it. However, this is not a question of the prosecutor making a comment and saying: "You will have noticed, by the way, that the accused has not given any evidence in the case". That is a comment. At present the prosecutor may make the comment that the Crown evidence stands uncontradicted. If, as the noble and learned Lord, Lord McCluskey, suggests, the jury are all-seeing about such matters, they will take that in, for what it is worth. However, this is not an artificial rule, as suggested by the noble and learned Lord.

The procurator fiscal, the advocate depute or the Lord Advocate is not a witness in any criminal proceedings. He is not and should not be entitled to put his view of the absence of the accused from the witness box, who is exercising a legal right within the system before the jury. If the jury wish to consider it, that is entirely a matter for them and they should not be fed by the prosecutor so that they have improper thoughts about the absence of the accused from the witness box.

Perhaps I may say for the record that it was suggested that John Wayne rode off into the sunrise. In fact, he rode off into the sunset. I hope that that makes no difference to the arguments presented to your Lordships' House. I am not satisfied with the explanation given by the noble and learned Lord the Lord Advocate and I seek the opinion of the House.

5.30 p.m.

On Question, Whether the said amendment (No. 53) shall be agreed to?

Their Lordships divided: Contents, 71; Not-Contents, 106.

Division No. 2

CONTENTS

Acton, L.
Addington, L.
Archer of Sandwell, L.
Ashley of Stoke, L.
Barnett, L.
Beaumont of Whitley, L.
Blackstone, B.
Bruce of Donington, L.
Carmichael of Kelvingrove, L.
Castle of Blackburn, B.
Clinton-Davis, L.
Dean of Beswick, L.
Desai, L.
Diamond, L.
Dormand of Easington, L.
Eatwell, L.
Ennals, L.
Falkender, B.
Falkland, V.
Farrington of Ribbleton, B.
Gallacher, L.
Geraint, L.
Gladwin of Clee, L.
Graham of Edmonton, L.
Greene of Harrow Weald, L.
Gregson, L.
Grey, E.
Harris of Greenwich, L.
Haskel, L. [Teller.]
Hollick, L.
Hollis of Heigham, B.
Houghton of Sowerby, L.
Hughes, L.
Irvine of Lairg, L.
Jay of Paddington, B.
Jeger, B.
Jenkins of Hillhead, L.
Jenkins of Putney, L.
Judd, L.
Kennet, L.
Kilbracken, L.
Lockwood, B.
Longford, E.
Lovell-Davis, L.
Macaulay of Bragar, L.
Mallalieu, B.
Mar and Kellie, E. [Teller.]
Masham of Ilton, B.
McCarthy, L.
McIntosh of Haringey, L.
McNair, L.
Merlyn-Rees, L.
Milner of Leeds, L.
Monkswell, L.
Morris of Castle Morris, L.
Nicol, B.
Ogmore, L.
Plant of Highfield, L.
Prys-Davies, L.
Rea, L.
Redesdale, L.
Richard, L.
Seear, B.
Sefton of Garston, L.
Shepherd, L.
Stoddart of Swindon, L.
Taylor of Blackburn, L.
Tordoff, L.
Varley, L.
White, B.
Williams of Mostyn, L.

NOT-CONTENTS

Allenby of Megiddo, V.
Balfour, E.
Belhaven and Stenton, L.
Borthwick, L.
Boyd-Carpenter, L.
Braine of Wheatley, L.
Brookes, L.
Brougham and Vaux, L.
Burnham, L.
Cadman, L.
Caithness, E.
Campbell of Croy, L.
Carnegy of Lour, B.
Carnock, L.
Carr of Hadley, L.
Charteris of Amisfield, L.
Chesham, L.
Chorley, L.
Clanwilliam, E.
Clark of Kempston, L.
Colwyn, L.
Cranborne, V. [Lord Privy Seal.]
Crook, L.
Cross, V.
Cumberlege, B.
Davidson, V.
Denham, L.
Dixon-Smith, L.
Downshire, M.
Dundonald, E.
Elles, B.
Elliott of Morpeth, L.
Elton, L.
Faithfull, B.
Fanshawe of Richmond, L.
Ferrers, E.
Flather, B.
Fraser of Carmyllie, L.
Glenarthur, L.
Goschen, V.
Gray of Contin, L.
Halsbury, E.
Harmar-Nicholls, L.
Harrowby, E.
Hayhoe, L.
Henley, L.
Hives, L.
Holderness, L.
Hooper, B.
Hothfield, L.
Inchyra, L.
Inglewood, L. [Teller.]
Jellicoe, E.
Keyes, L.
Kinnoull, E.
Layton, L.
Lindsay, E.
Long, V.
Lucas, L.
Lyell, L.
Mackay of Ardbrecknish, L.
Macleod of Borve, B.
Marlesford, L.
Merrivale, L.
Mersey, V.
Miller of Hendon, B.
Milverton, L.
Mountevans, L.
Napier and Ettrick, L.
Nelson, E.
Norrie, L.
O'Cathain, B.
Orkney, E.
Orr-Ewing, L.
Pender, L.
Peyton of Yeovil, L.
Quinton, L.
Rankeillour, L.
Renwick, L.
Robertson of Oakridge, L.
Rodger of Earlsferry, L.
Saint Albans, D.
Saltoun of Abernethy, Ly.
Seccombe, B.
Selborne, E.
Shrewsbury, E.
Shuttleworth, L.
Skelmersdale, L.
St. Davids, V.
Stewartby, L.
Strathclyde, L. [Teller.]
Strathcona and Mount Royal, L.
Sudeley, L.
Swansea, L.
Swinton, E.
Tebbit, L.
Thomas of Gwydir, L.
Trumpington, B.
Ullswater, V.
Vivian, L.
Wade of Chorlton, L.
Wakeham, L.
Weatherill, L.
Wharton, B.
Whitelaw, V.
Wynford, L.

Resolved in the negative, and amendment disagreed to accordingly.

6 Feb 1995 : Column 51

5.40 p.m.

Clause 27 [Sentence following guilty plea]:


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