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Lord Mishcon: Will the noble Lord add one thing to his clear analysis of what happens, and that is that the judge in hearing the ex parte application, and on being informed of the facts behind the view formed by the police officer, has to weigh the balance between fairness to the defendant in the trial and the question of public safety in the interests of security?

Lord Thomas of Gresford: That is entirely correct. The judge, in coming to his decision on whether part or all of the material should be disclosed to the defence, would do that on the basis of what he considers to be fair. If he says that it is fair to disclose the information, then the prosecution has to make up its mind whether to continue with the prosecution at all at the risk of revealing sources or other information from the security services. In a situation like that the prosecution will collapse the case, so the prosecution will cease because it will not disclose such information. In the other situation, the judge, faced with the simple opinion of the police officer on this legislation, cannot convict.

Lord Archer of Sandwell: Before the noble Lord sits down, does he agree that the charade that he described is unlikely to take place because in a public interest immunity application, the judge would say either, "I do not think that you should be required to answer those questions about your sources", in which case the matter would proceed, or he would say, "If you give that evidence, I do not agree that the matter is covered by public interest immunity and I shall require you to give your sources", and in that case the likelihood is that the evidence would not be given?

Lord Thomas of Gresford: I think that is what I was trying to say a moment ago. Clearly, my exposition was not clear enough and I apologise for that.

Lord Williams of Mostyn: I fully support the sentiments behind the amendment moved by the noble and learned Lord, Lord Mackay of Drumadoon. Of course, the evidence of a police officer under Clause 1 must, and will, be open to cross-examination. The noble and learned Lord wished for my positive reaffirmation of his belief that this would not inhibit any present rule of practice within the respective jurisdictions--and I confirm that.

Of course, we deal with things differently in the different jurisdictions. The Lord Advocate would have to come to his conclusion about where the public interest lay and about the particular disclosure of the sort of material to which the noble Lord, Lord Thomas of Gresford, referred before he launched the prosecution. The consideration would be given at that stage.

I believe that the noble Lord's analysis is correct in the way he which he summarised present practice in England and Wales. He knows, as I do, that in some

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cases--in a relatively small minority of cases--if there is a ruling ex parte by the judge with which the prosecution is not content, in the generality of cases--and it may be nothing to do with terrorism but relate simply to honest, decent crime--very often the prosecutor, having taken further instructions, will come to his own conclusion and, as the noble Lord said, will collapse the case himself. I am happy to confirm that cross-examination will be available, but nothing in this Bill is intended to, or can, alter the present practices and rules in the respective jurisdictions. I hope that that assurance, given as clearly and as bluntly as I can, satisfies the noble and learned Lord.

Lord Mackay of Drumadoon: When I heard the Minister talk about "honest, decent crime", I had a picture of him harking back to the happier days when he used to practise in those areas and be slightly better remunerated than he sometimes gives the impression of being in his current employment.

I am grateful to the Minister for amplifying what he said earlier. His statement that this Bill is not intended to inhibit the usual rules is precisely the assurance that I sought. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Mackay of Drumadoon moved Amendment No. 6:

Page 2, line 14, at end insert--
("( ) Subsection (6) below also applies in Scotland if evidence is given that--
(a) on appearing before the sheriff for judicial examination on the offence, in terms of section 36 of the Criminal Procedure (Scotland) Act 1995 the accused failed to mention a fact which is material to the office and which he could reasonably be expected to mention, and
(b) before appearing before the sheriff for judicial examination he was permitted to consult a solicitor.").

The noble and learned Lord said: This amendment again returns us to a point that I raised at Second Reading; namely, why the provisions of Clause 1--and in particular the provisions of neither subsection (4) nor subsection (5) of new Section 2A of the 1989 Act--did not cover the situation where an accused who has been charged with an offence under Section 2(1)(a) of the 1989 Act appeared before the sheriff for judicial examination. Although the noble Lord, Lord Dubs, replied to this point, I understand that he was advised to some extent about this peculiarly Scottish procedure by his noble and learned friend the Lord Advocate and I believe that this matter may merit slightly fuller discussion now in Committee.

In Scotland we have a procedure whereby, after an accused has appeared on petition on a serious charge--clearly, membership of a specified organisation in the current climate would fall into such a category--he can be brought before a sheriff in private for examination on the charge and may be questioned by the procurator fiscal. The questioning is limited to eliciting any admission, denial, explanation, justification or comment which the accused may have on a variety of issues,

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including on the nature and particulars of any defence that he may have to the charge. It seems to me that such particulars would undoubtedly include the mentioning of any fact which is material to the offence of being a member of a proscribed organisation and a fact which he could reasonably be expected to mention.

That procedure follows the statutory rules set down in the Criminal Procedure (Scotland) Act 1995. It almost universally takes place when the accused is represented by a solicitor who has certain rights to protect his interests at the hearing which takes place in private. It seems to me that if this legislation is to apply in Scotland, there is a strong case that in addition to applying to situations where an accused is questioned under caution about the offence or charged with the offence or informed by the constable that he might be prosecuted for the offence, it should apply also when, having been charged and brought before the court, he is questioned by the prosecutor under the supervision of the sheriff, having received certain cautions and warnings as to the questions he is entitled to answer or decline to answer and what comment may be made on failure to answer. It is appropriate that it should apply also to that procedure. Therefore I raise the matter again and look forward to the response. I beg to move.

The Lord Advocate (Lord Hardie): I do not believe that the inference from silence provisions in Clause 1 should extend to judicial examination before a sheriff in Scotland since it is designed to deal with a different type of situation. As the noble and learned Lord, Lord Mackay of Drumadoon, has explained, in Scottish criminal procedure, adverse comment can be made in relation to the silence of the accused before the sheriff at judicial examination, usually when he does not refer to an alibi or something of that sort and later, at the trial, he produces an alibi.

Under the Bill, Clause 1 deals with a slightly different situation; namely, inferences being drawn from the accused remaining silent on being questioned after appropriate caution but before being charged by police officers. Such inferences could be drawn even if the accused gave no evidence at the subsequent trial.

At the judicial examination at present, it would be normal for the procurator fiscal to ask about a reply to the caution on charge or it would be normal for him to ask the accused about an admission that he was alleged to have made to the police at some stage in the proceedings. However, it would not be normal to go through the full interview and to put to him that he had not answered a question or anything of that sort. Therefore, the position here is that if, at the stage of the caution and before the charge, the accused had failed to answer a question, that might be used against him at his trial. On the other hand, if the procurator fiscal were obliged to put that to him at judicial examination, in between times the accused might have had the opportunity to think about the matter and may wish to deny it. There is then an immediate complication at the trial because there is a conflict between the position adopted at the stage of caution before charge and the position adopted at judicial examination before the sheriff.

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For those reasons, we do not believe that it would be appropriate to introduce this provision into judicial examinations and I invite the noble and learned Lord to withdraw the amendment.

Lord Thomas of Gresford: Am I not right in thinking that the legislation from which those words come refers to a person who is being questioned under caution who fails to mention a fact which is material to his defence? That is the mirror of this, is it not?

What has happened in this particular legislation for the first time, as far as I know, is that a person is liable to have an adverse inference drawn against him if he fails to mention a fact which is material not to his defence but to the offence and which he could reasonably be expected to mention. Therefore, it would not be enough for him to say, "I deny that I am a member of that organisation". It would be open for the court to draw an inference if he did not add, "because I was out of the country at the time", or, "I have never paid a subscription", or, "I have never been asked to join", or something of that sort. Surely, failure to mention a fact that is material to the offence is very different from failure to mention a fact that is material to a person's defence. Does the noble and learned Lord agree that that is where the wording comes from, and can he explain the difference?

10 p.m.

Lord Hardie: The position is quite different and that is why it is not appropriate to include it in the judicial examination procedure. The intention of the provision is to remove the right of silence in relation to questions about membership of the specified organisation. At the stage of interview by the police under caution the accused would be advised that if he failed to answer a question directed to the investigation of his membership of that organisation and failed to provide a material fact which could point to his non-membership of that organisation that could be relied upon and adverse inferences drawn from it at his trial. All of this takes place prior to charge. He is cautioned and obviously has the benefit of the presence of a solicitor prior to his being questioned. As the noble and learned Lord, Lord Lloyd, said earlier, once the accused has seen a solicitor it is unlikely that he will say, "No comment." Any solicitor worth his salt will spell out in very simple terms the implications of making that response or remaining silent; and any criminal worth his salt will realise that the way round that is to deny that he is a member of the organisation, in which case this provision will not apply. It would not be a failure to deny membership or to admit a material fact.

Once one got to the judicial examination under the present law one would be concerned to ascertain whether the accused had a particular line of defence such as alibi, incrimination or what-have-you. If he failed to mention that at the judicial examination and sought to rely upon that particular defence at his trial, the prosecutor could comment on that fact to the jury. The jury might conclude that the inference to be drawn was that the alibi should not be believed. That would not prove the opposite. The jury might conclude it was

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rather strange that the accused had failed to explain the nature of his defence at the first opportunity at the judicial examination and yet months later at his trial he had come up with an alibi in which a number of witnesses said that at the time the accused was in the pub or what-have-you. The prosecutor could ask the accused why he had not said that at the judicial examination. The judge would direct the jury that that fact could be taken into account. Its only effect is that the jury would be entitled to disbelieve his alibi but it could not go on to say that because it did not believe the alibi it believed that the accused was there and involved. The jury would simply reject that special defence. The jury must still be satisfied that there is sufficient positive evidence to prove his guilt beyond reasonable doubt. Here we are talking about a different situation.

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