Previous Section Back to Table of Contents Lords Hansard Home Page


Lord Macaulay of Bragar: My Lords, we regard this as a significant piece of legislation in relation to the criminal procedure in Scotland. It is most welcome.

On Question, amendment agreed to.

[Amendment No. 85 not moved.]

Clause 49 [Prints, samples etc. in criminal investigations]:

Lord Fraser of Carmyllie moved Amendment No. 86:


Page 44, line 44, leave out from ("constable") to ("take") in line 45 and insert ("may, within the permitted period—
(a)") .

The noble and learned Lord said: My Lords, I shall speak also to Amendments Nos. 87, 88 and 89. They are technical in nature and I beg to move.

On Question, amendment agreed to.

Lord Fraser of Carmyllie moved Amendments Nos 87 to 89:


Page 45, line 3, leave out ("may,").
Page 45, line 10, leave out (", within the permitted period,").
Page 45, line 18, leave out ("(3) (a)") and insert ("(2)").

On Question, amendments agreed to.

Lord Fraser of Carmyllie moved Amendment No. 90:


After Clause 52, insert the following new clause:

Time limit for summary prosecution of statutory offences

(" .—(1) Section 331 of the 1975 Act (time limit for summary prosecution of statutory offences) shall be amended as follows.
(2) In subsection (1), after the words "in respect of" there shall be inserted "any offence triable only summarily and consisting of".
(3) Subsection (2) shall cease to have effect.").

The noble and learned Lord said: My Lords, I shall speak also to Amendments Nos. 127 and 130. On Second Reading I indicated that we were looking at certain inconsistencies which exist in time-bar provisions in respect of the summary prosecution of

6 Feb 1995 : Column 87

certain offences. The principal statute provision is Section 331 of the 1975 Act, which imposes a general bar against commencing summary proceedings in relation to statutory offences more than six months after the date of contravention. However, this section does not apply where the statute or order which creates the particular offence specifies its own time limit.

I am not in the habit of introducing government amendments by explaining first what they do not do. However, on this occasion, it might help to set the context. First, the amendments will not disturb any time bars in relation to the summary prosecutions of offences where, as I have indicated, the statute creating the offence specifies its own period. These time limits have been set in the light of the nature and circumstances of the offence in question. There is no need therefore to revisit them or to alter them.

Nor, and as importantly, do the amendments disturb the application of Section 331 to statutory offences which can be prosecuted only summarily. It is, indeed, desirable in the interests of justice that such lesser offences should be dealt with quickly.

A problem does, however, arise with statutory offences which are triable either summarily or on indictment. These are by definition more serious offences than those to which I have just referred. The existence of a general time bar of six months on a summary prosecution of offences causes particular difficulty in relation to offences contained in GB or UK statutes because there is no comparable general time bar on a summary prosecution of what are known as "either way" offences in England and Wales unless the statute specifically sets a time limit.

The unwelcome result is that the Crown in Scotland may be barred from prosecuting such offences there which the Crown Prosecution Service could prosecute in England when the offence does not come to light within the six month period. I am sure that noble Lords familiar with the Scottish system will appreciate that this is a growing problem given the increasing number of investigative functions which now fall to agencies other than the police.

The two minor amendments within the group repeal the last remnants of Section 331 of the 1975 Act, which were left in place in error when the bulk of that section was repealed in the Incest and Related Offences (Scotland) Act 1986. I beg to move.

On Question, amendment agreed to.

Clause 54 [Legal aid in criminal appeals]:

[Amendment No. 91 not moved.]

Clause 55 [Supervision and care of persons diverted from prosecution or subject to supervision requirement etc.]:

Lord Rodger of Earlsferry moved Amendment No. 92:


Page 48, line 45, after ("174ZC(2) (d)") insert ("or 375ZC(2) (d)").

The noble and learned Lord said: My Lords, this amendment has already been spoken to. I beg to move.

On Question, amendment agreed to.

6 Feb 1995 : Column 88

Lord Rodger of Earlsferry moved Amendment No. 93:


After Clause 73, insert the following new clause:

Forfeiture: district court

(" .—(1) Where, in respect of any offence tried in the district court, the accused is convicted or (without proceeding to conviction) an order is made discharging him absolutely the court may, if it is satisfied on the application of the prosecutor that any moveable property which was at the time of the offence or of the accused's apprehension in his ownership or possession or under his control—
(a) has been used for the purpose of committing, or facilitating the commission of, any offence; or
(b) was intended to be used for that purpose,
order that the property shall be forfeited to and vest in the Crown or such other person as the court may direct.
(2) Any application under subsection (1) above shall be made following upon the conviction of the accused or, as the case may be, the finding that he committed the offence with which he was charged.
(3) Where, by itself, the use of property constitutes an offence in whole or in part, that property shall be regarded for the purpose of subsection (1) (a) above as used for the purpose of committing the offence, unless the enactment which created the offence expressly excludes the application of this section.
(4) Subject to subsection (5) below, where the accused is convicted of an offence under any enactment, the court shall not be precluded from making an order under subsection (1) above in respect of any property by reason only that the property would not be liable to forfeiture under that enactment.
(5) Subsection (4) above shall not apply—
(a) if the enactment concerned expressly excludes the application of this section; or
(b) to any property which has been used or has been intended to be used as mentioned in subsection (1) (a) or (b) above in relation to the offence of which the accused has been convicted, if the enactment concerned specifies the category of property which is to be liable to forfeiture thereunder, and the category so specified does not include the category of property which has been used or has been intended to be used as aforesaid.
(6) Where the court makes—
(a) an order under subsection (1) above that property shall be forfeited to the Crown; and
(b) a compensation order under section 58 of the Criminal Justice (Scotland) Act 1980,
against the same accused in the same proceedings, it may order that the proceeds of sale of the property forfeited by virtue of subsection (1) above shall be first directed towards satisfaction of the compensation order.
(7) For the purposes of any appeal or review an order under subsection (1) above is a sentence.
(8) In this section "the court" means the district court.").

The noble and learned Lord said: My Lords, Clause 73 makes provision for a new set of forfeiture procedures. These arrangements will not extend to district courts. In this respect, we agree with the conclusions of the Scottish Law Commission that new measures, which are modelled in part on civil proceedings, are not appropriate for the business of the district courts. On the other hand, we do not wish to deprive the district courts entirely of the useful general forfeiture power which is available presently and which the district courts employ. However, that particular power will be repealed as part of the reform.

6 Feb 1995 : Column 89

We therefore considered whether district courts still need a general forfeiture power and we concluded that they do. The amendment introduces a substitute provision which will apply only to district courts. The conclusion is modelled closely on the provisions in Clause 73, adapted to make it workable for the district courts. The general power will extend only to movable property and will not attract the more complex arrangements which will support the suspended forfeiture order provisions.

Nonetheless, I believe that the clause will reinstate a valuable power to the district courts. It has been fashioned in a way which properly reflects the nature of the business of those courts. I beg to move.

7.45 p.m.

Lord Macaulay of Bragar: My Lords, is it proposed that the Government will give guidance to the district courts in the interpretation of the clause? It is not all that simple, even for lawyers to understand. In ensuring that the clause works effectively and without giving rise to appeals, it would be helpful for the courts to have guidelines.


Next Section Back to Table of Contents Lords Hansard Home Page