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Lord Rodger of Earlsferry: My Lords, in replying briefly, I acknowledge that this is not something which noble Lords will find altogether easy because it is a major and important change. It is always correct in matters of hearsay evidence that they are not subject to cross-examination. That is why we have generally excluded them. However, it has never been an absolute rule. Death is an obvious example, but judges have always had to comment on the fact that there has not been any cross-examination. The evidence here will be in the same category. It will therefore be a matter of comment that it has not been subject to

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cross-examination. I note, however, that under subsection (4) it will be possible to lead evidence in relation to credibility and reliability.

I also accept that there is always a risk that people may be made to disappear. As we know, that happens at present. It is a question of judgment as to whether, when people have disappeared, their evidence should nonetheless be available. Obviously, it is not a good thing if an accused person can make a witness against him disappear, because the Crown thereby loses the evidence. It is evidence, however, which will be subject to the comment that it has not been able to be cross-examined. Therefore, I accept that it is a question of judgment.

In the circumstances, all that I can say is that we have considered the matter carefully in the light of the report and having particular regard to Perry and Maclay. We believe that this is the best way forward. Obviously, we shall consider the matter as time goes by, but we believe that this is the correct way to proceed.

Lord Macaulay of Bragar: My Lords, before the noble and learned Lord sits down, can he advise your Lordships as to the timetable in another place when this amendment was introduced there? At what stage was it introduced? That is a matter which concerns me. Indeed, I hope that everybody who is interested in the administration of justice in Scotland will be concerned that we have not had time to consider the proposals. We know that they come from the Scottish Law Commission, but that is not the point. Lawyers, the Law Society and others interested in these matters should have time to consider the provisions.

Lord Rodger of Earlsferry: My Lords, the amendment was introduced in Committee. As I recall, the report appeared after the recent break. I think that we would have been open to criticism if we had not taken the opportunity presented by this Bill to bring forward legislation prepared by the Law Commission to deal with the very acute problem of Perry and Maclay.

Lord McCluskey: My Lords, I am proposing not to move my amendment, but I should like to reply specifically to the point raised by the noble Lord, Lord Macaulay. The matter was dealt with at the sixth sitting of the Scottish Standing Committee. It was introduced by Lord James Douglas-Hamilton who spoke, broadly speaking, in the same terms as the Lord Advocate has spoken today. There was no opposition to it at all. It was then referred to again on Report and there was again no opposition to it. Therefore, as the noble Lord, Lord Macaulay, said, it went through on the nod.

Lord Macaulay of Bragar: My Lords, I beg leave to withdraw Amendment No. 9A.

Amendment No. 9A, as an amendment to Commons Amendment No. 9, by leave, withdrawn.

[Amendment No. 9AA not moved.]


AMENDMENT TO COMMONS AMENDMENT NO. 9
9BIn subsection (5), after ("shall,") insert ("no later than 14 days").

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Lord Macaulay of Bragar: My Lords, I beg to move Amendment No. 9B as an amendment to Commons Amendment No. 9.

This is a short amendment which I hope will meet with the Government's approval. It seeks to give 14 days' notice within the terms of Commons Amendment No. 9 and to ensure that a person involved in a case can have adequate notice to pursue the matters covered by the debate that we have just had. It seeks to give the defence an opportunity to make proper inquiries as to people who have disappeared, are not available or cannot be found. As the noble and learned Lord, Lord McCluskey, said, if a person is ill he might be fit to appear within a certain period of time. On that basis, I beg to move.

Moved, That Amendment No. 9B, as an amendment to Commons Amendment No. 9, be agreed to.—(Lord Macaulay of Bragar.)

Lord Rodger of Earlsferry: My Lords, although I understand the intention behind the amendment, it is not well taken. It would impose a limit of 14 days but, as noble Lords will realise, such circumstances could arise within 14 days of the commencement of a trial. It could happen that somebody who was available at the start of the 14-day period was subsequently not available. The person may have died, for example. In that situation it does not seem appropriate to require that notice should be given within 14 days. Therefore we do not prescribe a limit to the notice but say that it must be given. It will of course be obvious that if it is given too late a judge will have to consider whether to allow an adjournment or whatever it may be. I hope with that assurance that the noble Lord will feel able to withdraw the amendment.

Lord Macaulay of Bragar: My Lords, I am obliged to the Minister for that explanation. I am not entirely convinced, but we shall look with interest at what the noble and learned Lord has said. In the meantime, I beg leave to withdraw the amendment.

Amendment No. 9B, as an amendment to Commons Amendment No. 9, by leave, withdrawn.


AMENDMENT TO COMMONS AMENDMENT No. 9
9CLeave out paragraph (6) (b).

7.30 p.m.

Lord McCluskey: My Lords, this is an amendment to delete sub-paragraph (b) of subsection (6) of the new clause. I can fully understand why no notice can be given in the circumstances in sub-paragraph (a). That sub-paragraph ends with the word "or". The provision then continues:


    "or


    (b) he satisfies the judge that there was good reason for not giving such notice".

That means that the judge can dispense with any notice in any circumstances. Indeed, he can dispense with all notice if the party—for example, the prosecutor—satisfies the judge that there was good reason for not giving the specified notice.

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Unfortunately, the notion of "good reason" is an extremely vague one. I suggest that it should have been tightened up. It should have said something to the effect that he satisfies the judge that there was special cause for not giving notice and that no other party will suffer prejudice by dispensing with notice.

I suggest to the noble and learned Lord the Lord Advocate that the idea of prejudice should be specifically written in so that it is not left as vague as it is at present. That is the basis of the amendment. I beg to move.

Moved, that Amendment No. 9C, as an amendment to Commons Amendment No. 9, be agreed to.—(Lord McCluskey.)

Lord Rodger of Earlsferry: My Lords, I understand the point that the noble and learned Lord makes, but we were anxious to build in a good deal of flexibility here, particularly from the point of view of the defence, because there may be reasons which occur more readily in the defence than the prosecution for notice not having been given before the trial.

The question of prejudice will be relevant to the allied question of whether some adjournment should be allowed. I would fully anticipate that if the judge were satisfied that an application could be made, despite the absence of notice, the question of an adjournment might be relevant.

Lord McCluskey: My Lords, in the light of that explanation, I beg leave to withdraw the amendment.

Amendment No. 9C, as an amendment to Commons Amendment No. 9, by leave, withdrawn.

On Question, Motion agreed to.


COMMONS AMENDMENT
10After Clause 16, insert the following clause:

Admissibility of prior statements of witnesses

' .—(1) Subject to the following provisions of this section, where a witness gives evidence in criminal proceedings, any prior statement made by the witness shall be admissible as evidence of any matter stated in it of which direct oral evidence by him would be admissible if given in the course of those proceedings.
(2) A prior statement shall not be admissible under this section unless—
(a) the statement is contained in a document;
(b) the witness, in the course of giving evidence, indicates that the statement was made by him and that he adopts it as his evidence; and
(c) at the time the statement was made, the person who made it would have been a competent witness in the proceedings.
(3) For the purposes of this section, any reference to a prior statement is a reference to a prior statement which, but for the provisions of this section, would not be admissible as evidence of any matter stated in it.
(4) Subsections (2) and (3) above do not apply to a prior statement—
(a) contained in a precognition on oath; or
(b) made in other proceedings, whether criminal or civil and whether taking place in the United Kingdom or elsewhere,
and, for the purposes of this section, any such statement shall not be admissible unless it is sufficiently authenticated.'.

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Lord Rodger of Earlsferry: I beg to move that the House do agree with the Commons in their Amendment No. 10.

I shall speak also to Amendments Nos. 11 and 12. These amendments are consequential upon Amendment No. 9. They are of course important in themselves, but, nonetheless, they are matters which follow on and carry out the principles embodied in Amendment No. 9.

Moved, That the House do agree with the Commons in their Amendment No. 10.—(Lord Rodger of Earlsferry.)


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