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Requirements of Writing (Scotland) Bill [H.L.]

3.19 p.m.

The Earl of Balfour: My Lords, I beg to introduce a Bill to reform the law of Scotland with regard to the requirement of writing for certain matters and the formal validity of contractual and other documents and presumptions relating thereto; to abolish any rule of law restricting the proof of any matter to writ or oath and to abolish the procedure of reference to oath; and for connected purposes. I beg to move that this Bill be now read a first time.

Moved, That the Bill be now read a first time.—(The Earl of Balfour.)

On Question, Bill read a first time, and to be printed.

Sheffield Assay Office Bill

Read a second time, and committed to an Unopposed Bill Committee.

Criminal Justice (Scotland) Bill [H.L.]

3.21 p.m.

Read a third time.

Clause 20 [Evidence of criminal record and character of accused]:

The Lord Advocate (Lord Rodger of Earlsferry) moved Amendment No. 1:


Leave out Clause 20 and insert the following new clause:

Evidence of criminal record and character of accused

(".—(1) In section 141 of the 1975 Act (accused competent witness for defence in solemn proceedings)—
(a) in subsection (1), in paragraph (f) (ii) of the proviso—
(i) after the word "character" where it first occurs there shall be inserted "or impugning the character of the complainer"; and
(ii) after the word "prosecution" in the second place where it occurs there shall be inserted "or of the complainer"; and
(b) after that subsection there shall be inserted the following subsections—
"(1A) In a case to which sub-paragraph (ii) of paragraph (f) of the proviso to subsection (1) above applies, the prosecutor shall be entitled to ask the accused a question of a kind specified in that paragraph only if the court, on the application of the prosecutor, permits him to do so.
(1B) An application under subsection (1A) above shall be made in the course of the trial but in the absence of the jury.
(1C) In subsection (1) above, references to the complainer include references to a victim who is deceased.".
(2) After section 141 of that Act there shall be inserted the following section—

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"Evidence of criminal record and character of accused.

141ZA.—(1) This section applies where—
(a) evidence is led by the defence, or the defence asks questions of a witness for the prosecution, with a view to establishing the accused's good character or impugning the character of the prosecutor, of any witness for the prosecution or of the complainer; or
(b) the nature or conduct of the defence is such as to tend to establish the accused's good character or to involve imputations on the character of the prosecutor, of any witness for the prosecution or of the complainer.
(2) Where this section applies the court may, without prejudice to section 149 of this Act, on the application of the prosecutor, permit the prosecutor to lead evidence that the accused has committed, or has been convicted of, or has been charged with, offences other than that for which he is being tried, or is of bad character, notwithstanding that a witness or production concerned is not included in any list lodged by the prosecutor and that the notice required by sections 81 and 82(2) of this Act has not been given.
(3) An application under subsection (2) above shall be made in the course of the trial but in the absence of the jury.
(4) In subsection (1) above, references to the complainer include references to a victim who is deceased.".
(3) In section 160 of that Act (laying of previous convictions before jury), for subsection (2) there shall be substituted the following subsection—
"(2) Nothing in subsection (1) above shall prevent the prosecutor—
(a) asking the accused questions tending to show that he has been convicted of an offence other than that with which he is charged, where he is entitled to do so under section 141 of this Act; or
(b) leading evidence of previous convictions where it is competent to do so—
(i) as evidence in support of a substantive charge; or
(ii) under section 141ZA of this Act.".
(4) In section 346 of that Act (accused competent witness for defence in summary proceedings)—
(a) in subsection (1), in paragraph (f) (ii) of the proviso—
(i) after the word "character" where it first occurs there shall be inserted "or impugning the character of the complainer"; and
(ii) after the word "prosecution" in the second place where it occurs there shall be inserted "or of the complainer"; and
(b) after that subsection there shall be inserted the following subsections—
"(1A) In a case to which sub-paragraph (ii) of paragraph (f) of the proviso to subsection (1) above applies, the prosecutor shall be entitled to ask the accused a question of a kind specified in that paragraph only if the court, on the application of the prosecutor, permits him to do so.
(1B) In subsection (1) above, references to the complainer include references to a victim who is deceased.".
(5) After section 346 of that Act there shall be inserted the following section—
"Evidence of criminal record and character of accused.

346ZA.—(1) This section applies where—
(a) evidence is led by the defence, or the defence asks questions of a witness for the prosecution, with a view to establishing the accused's good character or impugning the character of the prosecutor, of any witness for the prosecution or of the complainer; or

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(b) the nature or conduct of the defence is such as to tend to establish the accused's good character or to involve imputations on the character of the prosecutor, of any witness for the prosecution or of the complainer.
(2) Where this section applies the court may, without prejudice to section 350 of this Act, on the application of the prosecutor, permit the prosecutor to lead evidence that the accused has committed, or has been convicted of, or has been charged with, offences other than that for which he is being tried, or is of bad character.
(3) In subsection (1) above, references to the complainer include references to a victim who is deceased.".
(6) In section 357 of that Act (laying of previous convictions before court), in subsection (5), for the words from "evidence" where it first occurs to the end there shall be substituted "the prosecutor—
(a) asking the accused questions tending to show that the accused has been convicted of an offence other than that with which he is charged, where he is entitled to do so under section 346 of this Act; or
(b) leading evidence of previous convictions where it is competent to do so—
(i) as evidence in support of a substantive charge; or
(ii) under section 346ZA of this Act.".").

The noble and learned Lord said: My Lords, at Report stage I undertook to bring forward amendments to what is now Clause 20. Amendment No. 1 is the fulfilment of that undertaking. Its main effects can be summarised briefly.

First, it extends the effect of Section 141 of the Criminal Procedure (Scotland) Act 1975 which permits questioning of an accused person as to his record and character to cover the situation where the defence attacks the character of a person who has been killed in the incident covered by the charge. That fills an obvious loophole.

Secondly, subsections (1A) and (1C) put on to the face of the statute the need for the prosecutor to obtain the leave of the court before asking such questions. This reflects existing practice in the light of the case of Leggate.

Thirdly, for the reasons explained in Committee and at Report, subsection (2) builds on an existing aspect of our law which is referred to in Section 160(2) of the 1975 Act. That allows the prosecutor to lead evidence about an accused's bad character or previous convictions if the defence leads evidence suggesting he is of good character. By virtue of subsections (1) (a) and (b) of the new clause, the prosecutor will be able, again with leave of the court, to lead such evidence either where the defence leads evidence of good character or where the good character of, say, a Crown witness or a deceased person is attacked. So if, for instance, the defence leads evidence to indicate that someone who was killed in an incident had previous convictions for violence and so might be expected to have been the aggressor, the prosecutor may apply to lead evidence to show that the accused also had previous convictions for violence. This would allow the jury to have a rounded picture when judging who was the aggressor. Again, the need for the prosecutor to obtain the leave of the court before leading the evidence provides the necessary safeguard against abuse.

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Similar provisions are made for both solemn and summary cases. I do not believe that questioning or the leading of evidence under these provisions will necessarily occur frequently in our courts. But the provisions are significant in that they rationalise this area of our law. I beg to move.


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