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The Earl of Balfour: My Lords, the noble and learned Lord, Lord McCluskey, has said that to some extent he feels that the provisions are experimental. In Clause 73, no fewer than four different sections of other Acts are referred to. Perhaps my noble and learned Lord, the Lord Advocate, will consider bringing in the provisions a bit at a time. In that way the Secretary of State can see how matters are proceeding. If the first part proceeds effectively, then the other provisions should follow. That is just a suggestion.

Lord Rodger of Earlsferry: My Lords, as my noble friend will appreciate, I have indicated that the Government do not wish to proceed in that way for the reasons that I have given. However, I have indicated to the House that if it were desired to do that, that could be done by virtue of Section 101(2) which provides for different commencement dates.

The noble and learned Lord, Lord McCluskey, draws attention to the fact that while our proposal may relieve the burden on the High Court, nevertheless, it does not do that in relation to the sheriff and district courts. We were conscious of that and had we felt able to solve the problem, we should have moved an amendment to do so. As the noble and learned Lord will appreciate, the difficulty is that a balance must be struck. We do not wish to cut off the right of appeal from the district or sheriff courts at such an early stage so that, in effect, an appellant could not see what was the basis of the decision. For example, that is why we felt unable to intervene to suggest a cut-off point before the stated case stage, although I appreciate fully that the drafting of those stated cases may impose a considerable burden on the courts below.

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It is not that we are unaware or unresponsive to that issue. However, we do not see how to solve the problem without restricting unacceptably the right of appeal. That is why the Bill is drafted in that way.

Lord McCluskey: My Lords, I hope that the Government will think further on that. I know that it may not be possible to do that in the context of this Bill but I believe that the noble and learned Lord the Lord Advocate agrees that it is a serious problem. As the Minister knows, when a person seeks to have a case stated, he makes an application to the sheriff and he puts grounds before him. It may be at that stage that his case is so obviously without merit that it should be possible to dispose of the matter. It may be possible to think of a mechanism whereby a sheriff is entitled to say, "I should not be obliged to state a case", and a judgment could be made on that in chambers by a judge or several judges of the High Court.

I do not suggest that that is an ideal solution because it would not deal with all the problems. It would not deal with bills of suspension and bills of advocation. However, there is perhaps more success to be garnered in that field than that which is covered by the Bill. Perhaps the Government will set up a working party to consider how that could be achieved. I wish them luck because I have thought hard about the problem without coming up with any better solution than the one I have just mentioned. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Rodger of Earlsferry moved Amendments Nos. 75 and 76:


Page 26, line 47, after second ("appeal") insert ("and make such comments in writing as he considers appropriate").
Page 27, line 28, after second ("appeal") insert ("and make such comments in writing as the court considers appropriate").

On Question, amendments agreed to.

Lord McCluskey moved Amendment No. 77:


Leave out Clause 35.

The noble and learned Lord said: My Lords, the amendment invites the House to agree to strike out altogether Clause 35 which deals with the whole machinery for enabling leave to be sought and granted or refused.

On previous occasions I have referred to some of the light-hearted literature published by the Justice organisation in relation to miscarriages of justice. I say that it is "light-hearted" because in the midst of very solemn matters, it makes some light and amusing points. However in dealing with criminal appeals in England it has stated specifically that research carried out for the Royal Commission came to the conclusion that it is likely that some cases of merit are being weeded out wrongly at that stage—at the leave stage—of the appellate process. That is referred to on page 5 of the Justice report called Remedying Miscarriages of Justice, which was published in September 1994.

I believe that I mentioned previously the other matter which I should now like to outline more fully. Speaking about the single judge, the Justice report says:


    "The single judge acts as the main filter for appellants. Research carried out for the Royal Commission identified major problems with the process"—

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I emphasise the words, "major problems with the process"—


    "this accords with Justice's experience".

I have had access to many of the research papers of the Royal Commission but, sadly, not to all of them; and I am not familiar with that one. However, it is no doubt readily available to the noble and learned Lord the Lord Advocate. I hope that he will look at it to ascertain the nature of those "major problems", because I can detect no trace in the Bill's provisions of an attempt to deal with major problems.

The report goes on to say:


    "There is a lack of any consistent practice in the way that applications appear to be considered. In one case in which Justice has the papers a solicitor had in error sent in two sets of appeal papers in the same case. Two single judge decisions followed, one granting and one refusing leave. Both decisions had been made, at different times, by the same judge. The first decision was favourable and a custodial sentence was reduced to probation on appeal".

Then the report mentions the point which strikes me as being one of some importance:


    "While all systems are capable of individual error, the single judge process is regarded as particularly susceptible to inconsistency".

The report then gives a number of reasons relating specifically to England, but of course a judge may have to deal with a large number of applications after a day in court, while preparing for work the following day. The report continues:


    "Consistent and fair decision-making is not assisted by the fact that in most cases a judge's comments in refusing the application are brief, being one or two paragraphs at most".

There are many reasons for thinking that the matter is somewhat unsatisfactory and they are detailed in the report. We do know that the clause is bound to lead to some extra work as regards the reading of applications for leave to appeal. It will be extremely difficult to achieve consistency for reasons explained by the Justice report.

In conclusion, I have one important point to make. At present, the Appeal Court in Scotland can and does cope, although it does so with some difficulty because there is a great deal of work involved. But, in the circumstances, I urge the Government to consider whether or not the clause is really necessary and whether or not it addresses the problems identified by the Justice report and the Royal Commission's research papers. I beg to move.

The Earl of Balfour: My Lords, with the greatest respect to the noble and learned Lord, Lord McCluskey, Amendment No. 91 has been grouped with the amendment now before the House. Amendment No. 91 proposes that Clause 54 should be left out of the Bill. Does the noble and learned Lord wish to speak also to that clause, or will he deal with it separately?

Lord McCluskey: My Lords, with the permission of the House, I should like to say that, in effect, Clause 54 goes along with the amendment under discussion. I say that because if Clause 35 were to go, Clause 54 would go automatically. I do not believe that the House would

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have any difficulty with that situation. The point of substance falls to be discussed in relation to Amendment No. 77.

7 p.m.

Lord Rodger of Earlsferry: My Lords, the noble and learned Lord, Lord McCluskey, said that the Appeal Court is coping, but only just, with the volume of appeals. We want to assist the Appeal Court so that it will concentrate its resources in handling appeals which are appeals with merit and which, therefore, we hope will indeed be dealt with and disposed of more quickly.

I turn now to the general approach behind the clause. The noble and learned Lord drew attention to the possibility of error by single judges. Of course, one has to acknowledge that such a thing is possible. However, one also has to bear in mind—and this relates to the consistency of which the noble and learned Lord spoke—that we are dealing with a smaller body of judges in Scotland than that in England. Therefore, it should be possible to achieve greater standards of consistency of approach among that smaller body.

Of course one has to allow for the possibility of lapses occasionally, and so on; but one has to remember that there is provision for the matter to be heard by an appeal body and therefore to be reconsidered by three judges. In that way, I hope that the possibility of error is minimised. For that reason, we believe that the possible problems outlined by the noble and learned Lord are not of such a nature as to invalidate the approach which is contained in Clause 35.


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