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

7 p.m.

Lord Fraser of Carmyllie: My Lords, I beg to move that the Commons amendments be now considered.

Moved, That the Commons amendments be now considered.—(Lord Fraser of Carmyllie.)

On Question, Motion agreed to.


COMMONS AMENDMENTS
[The page and line refer to Bill (49) as first printed by the Commons.]
1Clause 13, page 9, line 9, leave out '76' and insert '67'.
2Page 9, line 34, leave out 'discharge' and insert 'postpone'.
3Page 10, line 20, leave out 'discharge' and insert 'postpone'.
4Page 10, line 26, leave out 'discharge' and insert 'postpone'.
5Clause 14, page 10, leave out lines 31 and 32.
6Page 10, leave out from beginning of line 44 to end of line 4 on page 11.
7Page 11, line 9, leave out 'discharge' and insert 'postpone'.
8Page 11, line 17, at end insert:
'(4) The foregoing provisions of this section shall have effect as respects any court prescribed by the Secretary of State by order, in relation to proceedings commenced after such date as may be so prescribed, with the following modifications—
(a) in subsection (1), for the word "may" there shall be substituted "shall, subject to subsection (1E) below,"; and
(b) after subsection (1) there shall be inserted the following subsections—
"(1E) If, on a joint application by the prosecutor and the accused made at any time before the commencement of the intermediate diet, the court considers it inappropriate to have such a diet, the duty under subsection (1) above shall not apply and the court shall discharge any such diet already fixed.
(1F) The court may consider an application under subsection (1E) above without hearing the parties.".
(5) An order under subsection (4) above shall be made by statutory instrument, which shall be subject to annulment in pursuance of a resolution of either House of Parliament.'.

Lord Fraser of Carmyllie: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 1 to 8.

Amendments Nos. 5, 6 and 8 ensure that the Secretary of State will have the power to introduce mandatory intermediate diets gradually, court by court, and, if

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appropriate, to disapply these provisions in particular courts. Gradual introduction will enable monitoring and evaluation of these diets to be carried out before they are introduced throughout Scotland. If it is deemed appropriate certain courts may not be required to hold such diets if it is clear that they would be of no practical value. The remaining amendments are of a minor nature. I beg to move.

Moved, That the House do agree with the Commons in their Amendments Nos. 1 to 8.—(Lord Fraser of Carmyllie.)

On Question, Motion agreed to.


COMMONS AMENDMENT
9After Clause 16, insert the following clause:

Exceptions to the rule that hearsay evidence is inadmissible

' .—(1) Subject to the following provisions of this section, evidence of a statement made by a person otherwise than while giving oral evidence in court in criminal proceedings shall be admissible in those proceedings as evidence of any matter contained in the statement where the judge is satisfied—
(a) that the person who made the statement will not give evidence in the proceedings of such matter for any of the reasons mentioned in subsection (2) below;
(b) that evidence of the matter would be admissible in the proceedings if that person gave direct oral evidence of it;
(c) that the person who made the statement would have been, at the time the statement was made, a competent witness in such proceedings; and
(d) that there is evidence which would entitle a jury properly directed, or in summary proceedings would entitle the judge, to find that the statement was made and that either—
(i) it is contained in a document; or
(ii) a person who gave oral evidence in the proceedings as to the statement has direct personal knowledge of the making of the statement.
(2) The reasons referred to in paragraph (a) of subsection (1) above are that the person who made the statement—
(a) is dead or is, by reason of his bodily or mental condition, unfit or unable to give evidence in any competent manner;
(b) is named and otherwise sufficiently identified, but is outwith the United Kingdom and it is not reasonably practicable to secure his attendance at the trial or to obtain his evidence in any other competent manner;
(c) is named and otherwise sufficiently identified, but cannot be found and all reasonable steps which, in the circumstances, could have been taken to find him have been so taken;
(d) having been authorised to do so by virtue of a ruling of the court in the proceedings that he is entitled to refuse to give evidence in connection with the subject matter of the statement on the grounds that such evidence might incriminate him, refuses to give such evidence; or
(e) is called as a witness and either—
(i) refuses to take the oath or affirmation; or
(ii) having been sworn as a witness and directed by the judge to give evidence in connection with the subject matter of the statement refuses to do so,
and in the application of this paragraph to a child, the reference to a witness refusing to take the oath or affirmation or, as the case may be, to having

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been sworn shall be construed as a reference to a child who has refused to accept an admonition to tell the truth or, having been so admonished, refuses to give evidence as mentioned above.
(3) Evidence of a statement shall not be admissible by virtue of subsection (1) above where the judge is satisfied that the occurrence of any of the circumstances mentioned in paragraphs (a) to (e) of subsection (2) above, by virtue of which the statement would otherwise be admissible, is caused by—
(a) the person in support of whose case the evidence would be given; or
(b) any other person acting on his behalf,
for the purpose of securing that the person who made the statement does not give evidence for the purposes of the proceedings either at all or in connection with the subject matter of the statement.
(4) Where in any proceedings evidence of a statement made by any person is admitted by reference to any of the reasons mentioned in paragraphs (a) to (c) and (e) (i) of subsection (2) above—
(a) any evidence which, if that person had given evidence in connection with the subject matter of the statement, would have been admissible as relevant to his credibility as a witness shall be admissible for that purpose in those proceedings;
(b) evidence may be given of any matter which, if that person had given evidence in connection with the subject matter of the statement, could have been put to him in cross-examination as relevant to his credibility as a witness but of which evidence could not have been adduced by the cross-examining party; and
(c) evidence tending to prove that that person, whether before or after making the statement, made in whatever manner some other statement which is inconsistent with it shall be admissible for the purpose of showing that he has contradicted himself.
(5) Subject to subsection (6) below, where a party intends to apply to have evidence of a statement admitted by virtue of subsection (1) above he shall, before the trial diet, give notice in writing of—
(a) that fact;
(b) the witnesses and productions to be adduced in connection with such evidence; and
(c) such other matters as may be prescribed by Act of Adjournal,
to every other party to the proceedings and, for the purposes of this subsection, such evidence may be led notwithstanding that a witness or production concerned is not included in any list lodged by the parties and that the notice required by sections 81 and 82(2) of the 1975 Act has not been given.
(6) A party shall not be required to give notice as mentioned in subsection (5) above where—
(a) the grounds for seeking to have evidence of a statement admitted are as mentioned in paragraph (d) or (e) of subsection (2) above; or
(b) he satisfies the judge that there was good reason for not giving such notice.
(7) If no other party to the proceedings objects to the admission of evidence of a statement by virtue of subsection (1) above, the evidence shall be admitted without the judge requiring to be satisfied as mentioned in that subsection.
(8) For the purposes of the determination of any matter upon which the judge is required to be satisfied under subsection (1) above—
(a) except to the extent that any other party to the proceedings challenges them and insists in such challenge, it shall be presumed that the circumstances are as stated by the party seeking to introduce evidence of the statement; and

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(b) where such a challenge is insisted in, the judge shall determine the matter on the balance of probabilities, and he may draw any reasonable inference—
(i) from the circumstances in which the statement was made or otherwise came into being; or
(ii) from any other circumstances, including, where the statement is contained in a document, the form and contents of the document.
(9) Where evidence of a statement has been admitted by virtue of subsection (1) above on the application of one party to the proceedings, without prejudice to anything in any enactment or rule of law, the judge may permit any party to lead additional evidence of such description as the judge may specify, notwithstanding that a witness or production concerned is not included in any list lodged by the parties and that the notice required by sections 81 and 82(2) of the 1975 Act has not been given.
(10) Any reference in subsections (5), (6) and (9) above to evidence shall include a reference to evidence led in connection with any determination required to be made for the purposes of subsection (1) above.'.

Lord Rodger of Earlsferry: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 9. It may be of assistance to the disposal of the business if at this stage I speak only to Amendment No. 9. Your Lordships will see that the amendment proposes to insert a new clause after Clause 16. The purpose of the new clause is to introduce exceptions to the rule that hearsay evidence is inadmissible.

The basic rule of our law is that hearsay evidence is inadmissible. What is proposed here is that a limited number of significant exceptions should be introduced to that rule. The clause embodies proposals which come from the report of the Scottish Law Commission. The report is the result of years of work, including consultation with various interested parties in the formulation of the proposals. The clause does not reproduce exactly the proposals of the Law Commission. A number of amendments have been made, particularly to deal with procedural matters, but basically it gives effect to the policy as embodied in the Law Commission report.

Your Lordships will already have seen the exceptions included in subsection (2) (a). The subsection reproduces the existing well-known exception of someone who is dead but adds a part to deal with people who by reason of their bodily or mental condition are unfit or unable to give evidence. Subsection (2) (b) goes on to deal with people who are outwith the United Kingdom and it is not reasonably practicable to secure their attendance at the trial or to obtain their evidence in any other competent manner. It would then be possible for hearsay evidence of that matter to be adduced.

Importantly, in paragraphs (c), (d) and (e), further exceptions are introduced. The exception in paragraph (c) is where a person cannot be found and all reasonable steps which, in the circumstances, could have been taken to find him have been taken. Paragraphs (d) and (e) deal with the situation where someone appears in court as a witness but declines to answer or refuses to take the oath and then refuses to give evidence.

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Among the purposes of paragraphs (c), (d) and (e) is to deal with the problem that has been highlighted in our courts over recent years and on which there has been a divergence of opinion among the judiciary, including, in particular, the noble and learned Lord, Lord McCluskey. That relates to the situation where a person who is an incriminee—someone who has admitted a particular crime—and whether it should be competent to lead evidence of that person's admission in a situation where the accused person has drawn attention to that by the appropriate notice and has incriminated that person. The provision means that where the person who is the incriminee cannot be found after reasonable steps, it would be possible for evidence of the statement—the admission—to be led, or, where he has been led in evidence—and that would be the appropriate thing if it could be found—but does not give evidence or refuses to give evidence or refuses to take the oath, or whatever it may be, in that situation evidence could be led.

I would be the first to admit that this is in many ways a matter where a balance of judgment has had to be reached. From the prosecution point of view there are obvious dangers that people may, for whatever reason, choose to hide themselves, other people who may fabricate evidence, and so on. Those are dangers of which we are aware. But we believe that the balance which has been struck is an appropriate one. It is, after all, a matter of judgment. The Law Commission has considered this matter very carefully. We believe that on balance it is appropriate to go down this road. In particular, we hope that it will deal with that particular and anxious matter which arose in the case of Maclay and had earlier arisen in the case of Perry, where, under our existing law, it was not possible to lead the evidence of an admission by an incriminee. It is a matter of judgment but we believe that the balance has been appropriately struck. I beg to move.

Moved, That the House do agree with the Commons in their Amendment No. 9.—(Lord Rodger of Earlsferry.)


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