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Lord Macaulay of Bragar: My Lords, it is unfortunate that very substantial amendments have been made to the Bill at this late stage of the proceedings. However, I recognise that the formulation which the noble and learned Lord the Lord Advocate has outlined arises from discussions which we had at Committee stage. A great many people who saw the multiplicity of government amendments made complaints to me that it was too late to consider them properly. But, having read the amendments, I believe that they have been properly balanced.

The question of leading evidence about the previous character of an accused person in court is, as the noble and learned Lord has said, properly balanced now in that the court will decide whether the question can be put. I just wish that the Government will look again at the right of the prosecutor to comment on the absence of the accused from the witness box in the same way that they have applied their minds to this section of the Bill. As noble Lords will be well aware, this Bill will be subjected to severe scrutiny in another place. I do not voice any objection to the phraseology at the moment, but obviously there is time for the matters to be considered and for representations to be received.

The Earl of Mar and Kellie: My Lords, during the earlier stages of our debates I expressed my disquiet at the inclusion of a similar clause in the Bill. My reservations were about the risks of an unsafe conviction occurring after the indiscriminate use of the accused's previous convictions. I felt then that the information would be far from helpful to the jury in coming to a decision. I am beginning to be satisfied that this opportunity for the prosecutor to establish the accused's previous bad character will be used only when the defence has either led evidence which tries to establish the accused's good character or indeed impugns the integrity of personalities within the prosecution. Provided that the process of applying for permission to retaliate in this way is completely out of the jury's awareness and that the Bench has a discretion in granting that permission, my reservations are probably satisfied. I shall be interested to see how this new clause works out in reality, if and when it reaches the statute book.

Baroness Carnegy of Lour: My Lords, the noble Lord, Lord Macaulay, commented on the fact that a number of people asked him whether he was satisfied that it is right for the Government to put down a number of long and quite complicated amendments at this stage. I was glad to hear him say that, having examined the amendments, for the time being he is satisfied. I am not in a position to judge the amendments on their merits. It is very satisfying that my noble and learned friends on the Front Bench have found it possible to bring the amendments before this

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House rather than wait for all that to be done in another place. There it will possibly be more difficult for some of the detail to be dealt with in view of the fact that so much of the discussion took place in this House. I am very glad that the amendments have come here, remembering that they can be altered to a small degree, if necessary, in another place.

Lord Macaulay of Bragar: My Lords, the observations that I made were not in acquiescence or satisfaction.

On Question, amendment agreed to.

Clause 37 [Leave to appeal]:

Lord Rodger of Earlsferry moved Amendment No. 2:


Page 28, line 12, leave out ("summing up by") and insert ("charge to the jury of").

The noble and learned Lord said: My Lords, in moving this amendment I shall speak also to Amendment No. 20. I gave notice on Report that we intended to bring forward these two minor amendments to adjust the terminology of Clause 37 and of the corresponding provision in the 1975 Act to refer to the "judge's charge to the jury", which is the phrase normally used in Scottish law, rather than the "summing up of the judge", which is more often used in England and Wales. I believe that that is a satisfactory change to the terminology. I beg to move.

Lord Macaulay of Bragar: My Lords, on a point of information from the noble and learned Lord the Lord Advocate, how did this alien phrase "summing up" creep into Scottish legislation? It tends to suggest that we are doing a mirror image exercise between English and Scottish legislation. We are all familiar with the phrase "the judge's charge to the jury" in Scotland, but I have never heard it described as a "summing up" at any time.

Lord Rodger of Earlsferry: My Lords, I have not got chapter and verse on it, but, as the noble Lord will be aware, the problem occurred in Section 274(5) of the 1975 Act. How and why it slipped in there I am not sure.

On Question, amendment agreed to.

Clause 75 [Exercise of powers by court or administrator]:

Lord Rodger of Earlsferry moved Amendment No. 3:


Page 65, line 10, leave out ("and 88") and insert (", (Inhibition of property affected by restraint order or by interdict) and (Arrestment of property affected by restraint order)").

The noble and learned Lord said: My Lords, in moving this amendment I shall speak also to Amendments Nos. 4 to 19 and 21 to 25. I apologise to your Lordships' House for the fact that a number of the very technical amendments to correct cross-referencing of clause numbers in the Bill appear on the Marshalled List as starred amendments. I beg the indulgence of the House in considering what are minor technical amendments which it was not possible to table earlier.

When we dealt with the matter on Report, I said that those issues would be dealt with on Third Reading. Although the amendments may appear substantial, they are in fact a necessarily lengthy expression of a

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straightforward principle. They introduce new clauses to replace Clauses 88 and 92 and make consequential amendments to other clauses and schedules.

In its report on confiscation and forfeiture, the Scottish Law Commission recommended that procedures generally available for inhibition and arrestment of property in connection with drug trafficking and terrorist offences should be extended to other serious crimes where confiscation and forfeiture were appropriate.

Existing procedures were available in Section 11 of the Criminal Justice (Scotland) Act 1987 for drug trafficking offences and in Schedule 4 to the Prevention of Terrorism (Temporary Provisions) Act 1989 for terrorist offences. The commission, however, considered that in relation to inhibition the existing provisions were cumbersome and inconvenient. It recommended a simple procedure available not only in the Court of Session, but also in the sheriff court. That procedure would be available on the application of the prosecutor. This recommended simple procedure for both inhibition and arrestment is set out in the Bill as drafted before your Lordships today.

We reflected further on that, however. As I indicated to your Lordships at an earlier stage, I have concluded that it would be inappropriate to bring forward a simplified inhibition procedure in respect of criminal proceedings only and available to the prosecution only. I am therefore asking the Scottish Law Commission to examine the whole question of inhibition procedure. Until we have its report and recommendations, I believe that the best course of action is to retain the existing procedures for inhibition in respect of drug trafficking and terrorist offences and to apply those existing procedures to other serious crimes through the medium of the Bill. The procedures have not caused difficulties in practice.

That is why I have brought forward these amendments. Although they appear extensive, what they do in essence is to reinstate the existing inhibition procedures in the 1987 and 1989 Acts and to insert them in the Bill so far as other serious crimes are concerned. At the same time, however, the amendments provide for the retention in the Bill of the simplified and extended procedure for arrestment of moveable property recommended by the commission.

As I have said, I apologise for the number of these technical amendments, but I hope that I have given a satisfactory explanation of a technical and complex matter. I beg to move.

On Question, amendment agreed to.

3.30 p.m.

Clause 76 [Compensation]:

Lord Rodger of Earlsferry moved Amendment No. 4:


Page 66, line 11, leave out ("88") and insert ("(Inhibition of property affected by restraint order or by interdict), (Arrestment of property affected by restraint order)").

On Question, amendment agreed to.

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Clause 84 [Restraint orders]:

Lord Rodger of Earlsferry moved Amendment No. 5:


Page 75, line 6, at end insert:
("(8) The court may, where it has granted a restraint order, interdict a person not subject to that order from dealing with property affected by it while it is in force.
(9) Subsections (2) (a) and (3) (a) above shall apply in relation to subsection (8) above as they apply in relation to subsection (1) above; and subsections (1), (2), (4) and (5) of section 87 of this Act shall apply in relation to an interdict under subsection (8) above as they apply in relation to a restraint order.
(10) Without prejudice to the time when it becomes effective, an interdict under subsection (8) above shall be intimated to each person affected by it.").

On Question, amendment agreed to.

Clause 87 [Variation and recall of restraint orders]:


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