Previous Section Back to Table of Contents Lords Hansard Home Page


Lord McCluskey: My Lords, I am happy to withdraw the amendment, but, having now found my notes, I realise that I have a little more to say. First, the notion of an appeal which involves a question of law

6 Feb 1995 : Column 68

alone, which appears in Section 1 of the Criminal Appeal Act 1968 (the English Act) is reflected in Section 240 of the Criminal Proceedings (Scotland) Act 1975 which provides that an appellant shall be entitled to be present, if he desires it, on the hearing of his appeal, except when the appeal is on some ground involving a question of law alone. That is a provision which has puzzled me in the same way as it has puzzled the noble and learned Lord the Lord Advocate.

The noble and learned Lord may be too young to remember the days before the new appeal procedures were brought in, when one applied for leave to appeal but it was heard in open court. Effectively one was arguing a question of law alone, although one might add a question of mixed fact and law. That distinction between a question of law alone, of the kind of which the noble and learned Lord has just been speaking, and a question of mixed fact and law, is one which is well understood in Scottish jurisprudence and is reflected in Section 1 of the 1968 English Act. Subsection (2B) refers to questions of fact alone, mixed fact and law, and so forth. It is that provision which relates also to where the judge of the court of trial grants a certificate.

I hope that the Government will consider carefully the possibility of the judge of the trial court being brought into the matter, because we have many things to do at the end of a trial. If there has been a conviction, in the High Court we would normally have to write a report for the Parole Board. We have to start preparing our report for the appeal, because appeals are extremely common nowadays. I see nothing wrong with our being invited at that stage to put down briefly our comments upon the merits of the case, as it were, in relation to an appeal. If the trial judge has a sense that justice may not have been properly done, perhaps because the defence has not been properly conducted, or for some other such reason, then he should have an opportunity to do that. I am sure that the Government, who have listened all along, will consider this matter further.

The Earl of Balfour: My Lords, before the noble and learned Lord, Lord McCluskey, withdraws the amendment, from my limited experience of court procedure, and as I understand the position, on technicalities of law, more than anything else, the verdict of not proven has from time to time been brought into Scots law. Surely that provision still exists on appeal: that the appeal judges could decide that the case was not proven in respect of the law. I may be wrong, but that is the impression I have.

Lord McCluskey: My Lords, before I sit down perhaps I may say that I doubt very much whether that is a matter which would trouble their lordships in the Appeal Court. They are concerned with errors of law. The error of law about which we are talking is, as I said, where a judge makes a mistake in the instructions he gives to the jury; where a judge makes a mistake in relation to the admissibility or exclusion of evidence, or something of that kind.

If something of that kind happens, the Appeal Court says, "Well, prima facie something has gone wrong here, or something has gone wrong. Does that amount

6 Feb 1995 : Column 69

to a miscarriage of justice?" That is the way it looks at it. That is a matter which is under consideration by the Sutherland Committee, and could perhaps be left to it.

Amendment, by leave, withdrawn.

[Amendment No. 72 not moved.]

6.45 p.m.

Lord McCluskey moved Amendment No. 73:


Page 26, line 36, at end insert:
("(8) The provisions of this section so far as they relate to appeals under paragraph (b), (bc), or (bd) of section 228(1) of this Act may be brought into force on such day as the Secretary of State may by order appoint under section 101(2) of the Criminal Justice (Scotland) Act 1995; but as the remaining provisions of this section so far as they relate to appeals under the remaining paragraphs of section 228(1) of this Act shall not be brought into force until at least eighteen months after the last date appointed under any commencement order brings into force the provision of this section in relation to appeals under paragraphs (b) (bc) and (bd) of section 228(1) of this Act, and then only if the Lord Justice General consents in writing that the provisions relating to such remaining paragraphs may be brought into force.").

The noble and learned Lord said: My Lords, the amendment introduces a new point. Although it looks complicated, its essence is clear. Subsection (8) to which I have referred in the amendment states:


    "The provisions of this section so far as they relate to appeals"—

those are essentially appeals to do with sentence—


    "may be brought into force on such day as the Secretary of State may by order appoint under section 101(2) of the Criminal Justice (Scotland) 1995; but"—

this is the important point—


    "as the remaining provisions of this section so far as they relate to appeals under the remaining paragraphs of Section 228(1) of this Act shall not be brought into force until at least eighteen months after the last date".

The reasoning behind the amendment is that we are moving to something that is entirely new; we are for the first time introducing leave to appeal, the leave to appeal question being determined by judges in chambers.

We do not know whether or not the procedure will work. We do not know whether it will reduce the burden on the courts and the legal aid scheme. We just do not know. I suggest that we bring it in gradually. Let us deal first with appeals against sentence, and at the end of 18 months reassess the position. Then, in consultation with the Lord Justice General, who is mentioned in the last few lines of the new provision, we can consider whether we should bring into force the remaining paragraphs of the section.

I do not know how the new system will work. It would make sense to approach it gradually. All I am doing is asking the Government to take power to deal with the matter one step at a time. We have heard from the appropriate Minister in another place in relation to the CSA—I think that the Statement was repeated here—that there is something to be said for pilot schemes and for advancing a step at a time. I believe that there is something to be said for a pilot scheme here in relation to sentence. If it works, by all means extend it; if it does not, then do not. I beg to move.

Lord Rodger of Earlsferry: My Lords, the Government do not wish to accept the amendment. As

6 Feb 1995 : Column 70

the noble and learned Lord knows, the vast majority of appeals coming before the Appeal Court arise from summary proceedings. As I understand it, if the amendment were accepted, much of the benefit of the new leave to appeal machinery would be lost. The amendment seems also to envisage that the provisions in respect of sentence only appeals would come into effect first. But the issues relating to appeals against sentence alone are, as the noble and learned Lord knows, different from those relating to appeals against conviction, and therefore I am not sure that a pilot scheme would tell us very much about how the other cases would be dealt with.

The Lord Justice General has been kept informed of the developments of thinking on the new appeal provisions, and of course would be consulted before they were commenced. From a technical standpoint, the noble and learned Lord will appreciate that Clause 101(2)—the commencement provision—allows for different commencement dates, and so if it were thought that different commencement dates were desirable, I am sure that it could be done under the existing power. As I say, we do not believe that to be desirable.

Lord McCluskey: My Lords, again, this is a matter upon which I hope the Government will reflect. In the United States they go in for what is commonly called "sunset" legislation. They are not the kind of sunsets about which the noble Lord, Lord Macaulay, was speaking earlier. They are legislative provisions which expire after 18 months or two years, and so forth, unless they are kept alive deliberately. There may be a great deal of sense were we to consider introducing such provisions into our statutes.

However, I recognise that the amendments that I have put forward are technically defective. These are even more defective than most of the amendments I have put forward, because they were done in haste while I was trying to do other things. However, the principle is clear. The Government could consider staging the introducing of these provisions so that we can see how they work.

I distinguish between sentencing and other cases in this provision because I recognise that that distinction is made already by the Government in the Bill in relation to the number of judges who sit to decide certain appeals. However, I am content with the discussions that we have had so far and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Deputy Speaker (Lord Skelmersdale): My Lords, I should point out in calling Amendment No. 74 that if this amendment is agreed to, I cannot call Amendments No. 75 or 76.

Lord McCluskey moved Amendment No. 74:


Page 26, line 40, leave out from beginning to end of line 46 on page 28.

The noble and learned Lord said: My Lords, I do not wish to press this amendment. I have tabled the amendment—and I should have tabled it in Committee—in order to make a point which I hope the Government will bear in mind as the Bill progresses through Parliament.

6 Feb 1995 : Column 71

I have spent a great deal of time thinking about and discussing with sheriffs how it is possible to cut down the number of wasteful appeals; that is, appeals without any real merit which are truly unarguable. I recognise that the provisions in this part of the Bill are aimed at solving that problem.

As I hope the noble and learned Lord the Lord Advocate will recognise, the Bill's provisions are designed to achieve some kind of saving in the time of the High Court but they achieve no saving at all for the sheriff or district courts. The experience of the sheriffs to whom I have spoken is that a great many cases are appealed almost as a matter of form. No doubt that is partly as a consequence of the fact that legal aid extends to preparing grounds of appeal. But sheriffs are commonly asked to draft a stated case because the accused just wants to have a look to see whether there is any possibility of an appeal.

I regret that although the legislation which the Government are introducing looks at the position of the High Court, it does absolutely nothing for the lower courts which are burdened heavily by unmeritorious appeals. I hope that the Government will be able to assure me that while it may not be possible to introduce provisions into this Bill, some thought will be given to tackling that much more serious problem. I beg to move.


Next Section Back to Table of Contents Lords Hansard Home Page