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The Earl of Mar and Kellie: My Lords, I wish to support this amendment. It seeks to build into the sentencing process a record of what has happened to the victim at the time of the offence and to record how he or she has subsequently coped with and got over the particular ordeal. Noble Lords will not be surprised that I support the amendment as it will assist the offender in hearing and beginning to understand what he or she has done. It will also assist the victim in that he or she will be recognised as a person of worth.

Lord Fraser of Carmyllie: My Lords, I said that I wanted to read carefully what had been said in Committee by the noble and learned Lord and others on victim impact statements. That I have done. I have also listened carefully to what the noble and learned Lord has said this evening. There is much with which I agree. There is no doubt that one of the frustrations that victims feel all too often is that the account of what has happened to them is not as full as it may be or does not reflect the degree of distress that they may have suffered as a result of assaults, or whatever they may be. I am sure that the noble and learned Lord, with his very much greater experience than my own in matters prosecuting, will also be aware that often what gives rise to frustration to the victim is where the account that he or she wishes to be given to the court cannot be given either because of the plea that has been tendered or the verdict that has been returned by the jury. The victim feels that in some sense his or her true position has not been properly reflected in the observations made by the prosecutor.

We have to be very careful that where proper discretion is exercised by the public prosecutor in Scotland it is not in any way fettered by a desire, albeit a proper one, to ensure that what the victim wishes to have said to the court in regard to the impact upon him or her is said, and that in spite of that we do not get the balance wrong.

I return to the views of those who are closest to and, I believe, are best placed to speak for the interests of victims and those who have undertaken research into the effectiveness of victim impact statements in various jurisdictions elsewhere where they have been tried. I am reluctant to quote selectively, but at Committee stage I referred to an article written by Professor Andrew Ashworth of the University of London in 1993. He came to the general conclusion that the best way forward was to improve services for victims rather than to rely on new procedural rights. Generally speaking, that is the approach with which we agree. As I understand it, Victim Support (Scotland) also takes such a line. It is for that reason that our efforts at present are engaged in

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taking forward the matter in that fashion rather than looking to victim impact statements as a way of providing greater support for the victim.

Concerning the further amendment, it is proposed that there be a statutory right giving the victim notice of the sentencing procedures in solemn procedure cases. As is the case this side of the Border, sentencing proceedings in Scotland take place in open court, and any member of the public has the right to be present. I do not consider that there is any need for an express statutory right for victims of crime in this regard.

I am concerned that the notice of the sentencing given to the victim may frequently have to be no more than tentative, because in practice sentencing may take place on a variety of occasions from the first diet to the trial diet or at any time in a sitting that may last several days, or indeed at a sentencing diet following deferral for reports. Albeit with the best intentions that such a right is proposed, the practical effect of the amendment may be that the victim will turn up on repeated occasions when nothing happens, with potentially a greater degree of trauma and distress suffered by the victim because no sentence is passed on the particular day.

I have no difficulty with the idea that victims should attend if they want to. The Crown Office does what it can to keep victims advised of the progress of cases, but I do not wish to go so far as to give an express statutory right to this effect.

Lord McCluskey: My Lords, I have nothing to add to what I have said on Amendment No. 56. I am hopeful that, the matter having been raised in this way by the noble Earl, myself and others, further thought will be given in time to whether the interests of the victim can be advanced in this respect.

Regarding Amendment No. 57, I deliberately inserted the words,


    "shall as far as practicable be given adequate notice by the Crown Office"

because I did not want to impose on the prosecutor an absolute duty. I was trying to encourage a new system under which the prosecutor would give notice. In Scotland if a person pleads guilty, normally the date of the hearing of the plea will be fixed weeks beforehand and an intimation of that can be given. In a case where a person intimates two or three days before his trial that he will plead on the morning of the trial, that again is known in time to tell the victim.

I accept that there may be occasions when the court cannot proceed to sentence because it requires further reports. Some are required by statute and some are required because the judge himself would like to hear further reports from psychologists or others. But it is usually fairly straightforward for the prosecutor to be able to predict whether or not a sentence will be imposed on a particular day and, accordingly, the clause was designed to allow for that. But, again, I believe that if one makes a point—if it is a good point and that is not for me ultimately to judge—it will continue to live for a while and eventually may come up in a different form. In the hope that that may be so, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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6 p.m.

Lord McCluskey moved Amendment No. 57:


After Clause 27, insert the following new clause:

("Victim's right to attend sentencing proceedings

. After section 217A of the 1975 Act there shall be inserted the following section—
"Victim's right to attend sentencing proceedings.

217D. The victim of any crime, or the next of kin of the victim if the victim has died shall have the right to attend all sentencing proceedings in solemn procedure under this Act and shall as far as practicable be given adequate notice by the Crown Office of all such sentencing proceedings concerning the person or persons who committed the crime or offence concerned".").

The noble and learned Lord said: My Lords, I move this amendment for a purely technical reason, the technical reason being that I am anxious that it should be printed in the record of these proceedings. However, I have nothing further to add to it. If your Lordships have no comment to make, I shall simply withdraw it.

Amendment, by leave, withdrawn.

Clause 28 [Sentencing guidelines]:

Lord McCluskey moved Amendment No. 58:


Leave out Clause 28.

The noble and learned Lord said: My Lords, this amendment seeks to leave out Clause 28. I spoke to this matter to some extent on a previous occasion in Committee. The clause has a side note "Sentencing guidelines". The clause proposes that the High Court, in disposing of certain appeals, may,


    "without prejudice to any other power in that regard, pronounce an opinion on the sentence or other disposal or order which is appropriate in any similar case".

Secondly, it enacts that a court in passing sentence,


    "shall have regard to any relevant opinion pronounced under subsection (1) above".

The argument here is a clear argument, based on the Renton Committee's recommendations, that this is entirely unnecessary.

The curious thing is that the side note is headed "Sentencing guidelines" but the new section does not seek to deal with guidelines. Perhaps I may refer your Lordships to the recently published book Criminal Sentences by Daniel Kelly. It begins with the words—I think there is some substance in these:


    "The oft-mooted assertion that there is no sentencing policy in Scotland presents a challenge to ascertain the extent to which a coherent sentencing system may be discerned".

I pause to say that that is not a challenge which I would feel strong enough to undertake to beat at this time of night. The text goes on:


    "An examination of the decisions of the High Court of Justiciary over the past decade or so reveals that although there may not be any guidelines"—

that word is in italics—


    "on sentencing, there is a considerable amount of guidance"—

that word is also in italics—


    "available on sentencing".

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So there is a distinction between guidance and guidelines. The courts at the moment give guidance and do not wish to give guidelines. The section permits them to give guidance but is called a section about "Sentencing guidelines". I think that the Government have not had the advantage of reading Mr. Kelly's introduction and should do so.

Mr. Kelly goes on to say that,


    "in certain instances in the course of individual cases the appeal court has made observations which have a general application to sentencing practice in similar cases. Such general observations on aspects of sentencing ... do in effect make up a significant sentencing framework in Scotland".

He comes to the conclusion after only 22 lines of discussion that there is a sentencing policy in Scotland. I congratulate him upon that discovery which had hitherto evaded me.

The point I seek to make, however, is that the clause is unnecessary. The courts do give guidance. The courts below are only too anxious to receive such guidance. They want it and they thirst for it, as I understand it, and they welcome it in the form in which it is currently given. Accordingly, it is unnecessary to have this clause. The noble and learned Lord the Minister said that the majority of those consulted, or the majority of judges, supported guidelines, but he does not introduce guidelines. The Government's position in this matter is slightly confused. I hope that in moving this amendment they will have an opportunity to clarify it. I beg to move.


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