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AMENDMENT TO COMMONS AMENDMENT No. 10
1OAIn paragraph (2) (b), after ("as") insert ("an accurate statement of").

Lord McCluskey: My Lords, I am trying to keep pace with the speed of developments. This clause is concerned, in effect, to put into statutory form the law which has been developing since Muldoon v. Herron and which most recently found expression in Jamieson v. Her Majesty's Advocate in July last year. I do not greatly approve of the way the law has developed. But it has developed slowly in the courts and there is nothing that I propose to alter in respect of it. But what worries me about the matter here is that, if one looks at the Jamieson case, one has the kind of situation where the witness comes into court and says, "I cannot give evidence about the matter. I did not see it". Then under pressure he says, "Well I might have said something different to the police. Yes, I did give a statement to the police". He is asked, "Did you tell lies to the police?" "No". "Did you tell the truth to the police?" "I suppose I did". Then the police say in court, "What he told us was this". That then becomes the evidence in the case. This provision gives that statutory form.

That worries me and so I am concerned to move this amendment which would insert after the words, "he adopts it as", in paragraph (2) the words, "an accurate statement of". In other words, one has to be a little more strict than the court was in the case of Jamieson. It is not to be regarded as evidence which the jury can found upon unless the witness says, "Yes, I said it, and I accept that it is an accurate account of the evidence which I would have given if my memory had not failed me". I beg to move.

Moved, That Amendment No. 10A, as an amendment to Commons Amendment No. 10, be agreed to.—(Lord McCluskey).

Lord Rodger of Earlsferry: My Lords, the question is whether the evidence should be admissible. I of course understand the point that the noble and learned Lord makes, but where someone in the circumstances he described says, "If that is what I said, it must have been true", or whatever it is he says, he has in effect adopted it as his evidence.

The question is whether that evidence is admissible. It will be open to cross-examination and comment. I do not believe that it would add anything in practice if he merely said, "I adopt it as accurate", or whatever it may be, because that is the tenor of it. It may well be that in such circumstances questions arise as to whether the evidence was accurate. I believe that the spirit of what

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the noble and learned Lord said is reflected in what we have here and in the Jamieson case, although I accept of course that it is not put in quite that way.

Lord McCluskey: My Lords, I am not impressed by the answer to the effect that the person can be cross-examined. If one were to look at the case of Jamieson, one would find that were Marianne Robertson, who gave evidence—her evidence is printed in the report of Jamieson v. Her Majesty's Advocate—to be cross-examined she would, I presume, simply say, "I don't remember". Therefore the cross-examination will be of no value in challenging the statement which is attributed to her by the police.

Obviously when a person is asked the question, "Did you tell the police the truth?", as she was asked, such a person will not say, "No". She will say, "Yes", as Marianne Robertson did. So I do not see the safeguards as being sufficient. However, I do not propose to divide the House on the matter, and I beg leave to withdraw the amendment.

Amendment No. 10A, as an amendment to Commons Amendment No. 10, by leave, withdrawn.

On Question, Motion agreed to.


COMMONS AMENDMENT
11After Clause 16, insert the following clause:

Statements by accused

' .—(1) Subject to the following provisions of this section, nothing in sections (Exceptions to the rule that hearsay evidence is inadmissible) and (Admissibility of prior statements of witnesses)of this Act shall apply to a statement made by the accused.
(2) Evidence of a statement made by an accused shall be admissible by virtue of the said section (Exceptions to the rule that hearsay evidence is inadmissible) at the instance of another accused in the same proceedings as evidence in relation to that other accused.
(3) For the purposes of subsection (2) above, the first mentioned accused shall be deemed—
(a) where he does not give evidence in the proceedings, to be a witness refusing to give evidence in connection with the subject matter of the statement as mentioned in paragraph (e) of subsection (2) of the said section (Exceptions to the rule that hearsay evidence is inadmissible); and
(b) to have been, at the time the statement was made, a competent witness in the proceedings.
(4) Evidence of a statement shall not be admissible as mentioned in subsection (2) above unless the accused at whose instance it is sought to be admitted has given notice of his intention to do so as mentioned in subsection (5) of the said section (Exceptions to the rule that hearsay evidence is inadmissible); but subsection (6) of that section shall not apply in the case of notice required to be given by virtue of this subsection.'.

Lord Rodger of Earlsferry: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 11.

Moved, that the House do agree with the Commons in their Amendment No. 11.—(Lord Rodger of Earlsferry.)

On Question, Motion agreed to.

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COMMONS AMENDMENT
12After Clause 16, insert the following clause:

Construction of sections (Exceptions to the rule that hearsay evidence is inadmissible), (Statements by accused) and (Admissibility of prior statements of witnesses)

' .—(1) For the purposes of sections (Exceptions to the rule that hearsay evidence is inadmissible), (Statements by accused) and (Admissibility of prior statements of witnesses) of this Act, a "statement" includes—
(a) any representation, however made or expressed, of fact or opinion; and
(b) any part of a statement,
but does not include a statement in a precognition other than a precognition on oath.
(2) For the purposes of the said sections (Exceptions to the rule that hearsay evidence is inadmissible), (Statements by accused) and (Admissibility of prior statements of witnesses) a statement is contained in a document where the person who makes it—
(a) makes the statement in the document personally;
(b) makes a statement which is, with or without his knowledge, embodied in a document by whatever means or by any person who has direct personal knowledge of the making of the statement; or
(c) approves a document as embodying the statement.
(3) In the said sections (Exceptions to the rule that hearsay evidence is inadmissible), (Statements by accused) and (Admissibility of prior statements of witnesses)—
"criminal proceedings" include any hearing by the sheriff under section 42 of the Social Work (Scotland) Act 1968 of an application for a finding as to whether grounds for the referral of a child's case to a children's hearing are established, in so far as the application relates to the commission of an offence by the child;
"document" includes, in addition to a document in writing—
(a) any map, plan, graph or drawing;
(b) any photograph;
(c) any disc, tape, sound track or other device in which sounds or other data (not being visual images) are recorded so as to be capable (with or without the aid of some other equipment) of being reproduced therefrom; and
(d) any film, negative, tape, disc or other device in which one or more visual images are recorded so as to be capable (as aforesaid) of being reproduced therefrom;
"film" includes a microfilm;
"made" includes allegedly made.
(4) Nothing in the said sections (Exceptions to the rule that hearsay evidence is inadmissible), (Statements by accused) and (Admissibility of prior statements of witnesses) shall prejudice the admissibility of a statement made by a person other than in the course of giving oral evidence in court which is admissible otherwise than by virtue of those sections.
(5) Nothing in the said sections (Exceptions to the rule that hearsay evidence is inadmissible), (Statements by accused) and (Admissibility of prior statements of witnesses) shall apply to—
(a) proceedings commenced; or
(b) where the proceedings consist of an application to the sheriff by virtue of section 42(2) (c) of the Social Work (Scotland) Act 1968, an application made,
before those sections come into force; and for the purposes of paragraph (a) above, solemn proceedings are commenced when the indictment is served.'.

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Lord Rodger of Earlsferry: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 12.

Moved, that the House do agree with the Commons in their Amendment No. 12.—(Lord Rodger of Earlsferry.)


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