Comment by Prosecutor on Accused's Failure to Give Evidence

Orders of the Day — Criminal Justice (Scotland) Bill [Lords] – in the House of Commons at 6:15 pm on 7th June 1995.

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Photo of John McFall John McFall , Dumbarton 6:15 pm, 7th June 1995

I beg to move amendment No. 169, in page 26, line 4, at end insert— '(2) The prosecutor shall only be permitted to comment on the failure of the accused to give evidence in any proceedings against him if—

  1. (a) the accused has intimated a special defence of alibi or incrimination; or
  2. (b) the court has upon application being made agreed that it is appropriate in the circumstances of the case that the prosecutor should be entitled so to comment.'.
The amendment relates to clause 32. It concerns the right of the prosecutor to comment on the defence's failure to give evidence. As was mentioned in Committee, it is an important measure, which has drawn sharp criticism from the legal fraternity.

When I mention the legal fraternity, perhaps I should mention one of its members who advises all parties in the House. irrespective of stance—Michael Clancy of the Law Society. We value Michael's assistance greatly over the months and years. Michael has been ill recently, but he is recovering, and today he was in the Box under the Gallery watching the deliberations. Both sides of the House are grateful to Michael for the assistance that he has provided. I know that the Minister, in particular, agrees with me, but it is nice to have recorded in Hansard the assistance that he gives all parties in the House, not least on the issue of the right of the prosecution.

The Law Society, among others, feels strongly about the issue. The amendment seeks to circumscribe the occasions when the prosecutor can comment on the defence's failure to give evidence. It has been suggested in the press in Scotland by eminent legal writers that the scales of justice are being tipped in favour of the prosecution rather than the defence by the introduction of the clause. The Opposition agree with that view, and ask the Government seriously to consider the issue so that the scales of justice are finely balanced again, and are neither in favour of the prosecutor or the defence.

Without the amendment, the prosecutor will be able to comment on the accused's silence on a particular issue. That will give the prosecutor more power and leeway than the judge has at present. That cannot be in the interests of fairness and the law.

We should consider what could happen in the case of an over-zealous prosecutor. The point was drawn to the attention of the Minister before, but he gave an inadequate answer. If there is an over-zealous prosecutor, the judge could comment on that, but by commenting on it, he would be bringing to the attention of the jury the fact that the prosecutor mentioned it in the first place, so the judge would be reinforcing it. It would be in the mind of the jury throughout the trial and when it decided the verdict. That is an important point that I would like to get across to the Minister in the amendment.

There is a considerable amount of case law relating to the right of the court to comment on the accused person's silence at trial. Those cases clarify the circumstances when the judge may comment. The prosecutor should be subject to the same restrictions as the judge. The amendment would ensure simply that the prosecutor's right to comment is no wider than that of the judiciary.

In September, the Government published a consultation paper: The right to silence, judicial examination and evidence of previous convictions". It was a hastily produced document. One has it in mind that it was based on the position in England and Wales, and the Government sought to align the position in Scotland with that in England and Wales. I submit to the Minister that the legal system in Scotland is unique, that we do not need to copy England and Wales, and that the Government undertook a hasty measure when they produced their document last September.

Judges have been drawing attention to the accused's silence since 1918 in the case of Brown v. Macpherson, when Lord Justice General Strathclyde said: the judge may, and in my opinion should, in exceptional cases comment upon the fact…that an accused failed to give evidence or go into the witness box.

There are other cases since that time have developed that case law such as Scott v. Hon. Member Advocate in 1946, Stewart and others v. Hon. Member Advocate in 1980 and McLean and Canning v. Hon. Member Advocate in 1993. So the judge can comment on cases.

The law is clear that judicial comment can only be made when special defences of alibi or incrimination have been entered,, where it is clear that the accused knows certain facts unknown to anyone else or where inference of guilt can be drawn from the unanswered Crown case. If the judge is constrained by case law to comment on the failure of the accused to enter the witness box, why will not the prosecutor be similarly constrained? Why are the Government offering the prosecutor an excess not available to the judiciary? Such a constraint would help to balance the scales of justice.

The right to silence has existed more than 100 years, since the Criminal Procedure Act 1887—so why in 1995 are the Government overturning that right and tipping the balance in favour of the prosecution? The Government have no credible case, and it ill behoves them to proceed without adequate explanation. It is important to maintain public confidence in Scotland's criminal justice system, and the Government's proposal would be a small step to reducing it. It would not serve the interests of justice, and I ask the Government to reconsider.

Photo of Lord James Douglas-Hamilton Lord James Douglas-Hamilton , Edinburgh West 6:30 pm, 7th June 1995

The hon. Gentleman was right to pay tribute to the Law Society, which has been diligent in making representations to all parties, and to Michael Clancy—for whose help to right hon. and hon. Members we are most grateful. We wish him a speedy recovery.

Clause 32 removes the prohibition on the prosecutor's right to comment on the failure of the accused to give evidence on his own behalf. We have promoted that change because we believe it right that the prosecutor should be able to draw to the jury's attention, with the proper degree of care and balance, what may be an important element of the case before them. The clause gives the prosecutor the right to comment in all such situations. That follows the recommendations of the Thomson committee.

We believe that the prosecutor can be relied on to use the discretion appropriately and sparingly. To emphasise that, my noble and learned Friend the Lord Advocate has undertaken to issue guidance to procurators fiscal on the use of the right to comment. The system provides perfectly adequate safeguards against the possibility of the prosecutor going too far in his comments. The prosecutor's right to comment will be no wider than that of the judge. If the prosecutor were to go too far—I emphasise our belief that that will be very much the exception—it will be open to the judge to draw that to the attention of the jury in his charge, and to direct them accordingly.

Photo of John McFall John McFall , Dumbarton

If the prosecutor is over-zealous, it will be the judge's place to correct him—but by doing so, the judge will have brought the situation to the jury's attention on two occasions. Rather than allow such flexibility for the prosecutor, is it not necessary to issue guidelines to which prosecutors could work? Without them, there will be no adequate safeguard.

Photo of Lord James Douglas-Hamilton Lord James Douglas-Hamilton , Edinburgh West

That is the purpose of the guidance that my noble and learned Friend will issue to prosecutors, which will he of substantial assistance.

In cases of defences of alibi and self-defence, the judge's ability to comment is not limited to the examples quoted by the hon. Gentleman of the kinds of situation in which comment might be made. In the final analysis, it will be open to the accused to seek leave to appeal against any ensuing conviction or sentence if it is thought that the prosecutor's comments might have led to a miscarriage of justice. Neither limiting the right to comment to situations where special defences have been intimated nor requiring the court to take a decision in advance of the prosecutor commenting on the failure to give evidence is a sensible way to proceed.

Even if there were some merit in that approach, I am unclear why it should be thought appropriate to list only the special defences of alibi and incrimination in this amendment, and exclude the other special defences, including that of self-defence. Seeking to introduce the unusual and imperfect procedures in the amendments would not add anything to the safeguards already available to the accused. I urge the hon. Gentleman to withdraw the amendment.

Photo of Menzies Campbell Menzies Campbell Shadow Spokesperson (Foreign and Commonwealth Affairs), Shadow Spokesperson (Foreign and Commonwealth Affairs)

On Second Reading, I said that I did not share misgivings that a prosecutor might be entitled to comment on the absence of the giving of evidence by an accused person. From my own experience of prosecuting and defending, if that is not done expressly, there is often an opportunity for the prosecutor to comment at least by implication.

I was not as persuaded as the hon. Member for Dumbarton (Mr. McFall) of the need to be anxious about the Bill's proposal. However, that reflects a substantial and radical innovation that is contrary to previous procedure, which may have consequences for the freedom of the subject. In those circumstances, there is a duty to be certain that innovation will be properly restricted.

My anxiety about the Minister's response is illustrated by an expression coined by Mr. Melvin Belli, a famous United States attorney—or trial lawyer, to use the vernacular. He said, "If you let a skunk into the jury room, you should not be surprised if it creates a smell." That is a colourful way of saying that, if evidence or comments are produced before a jury, one can hardly be surprised if the jury takes account of them—no matter how strict the instructions given by the trial judge to disregard them.

Although the Minister may have a point in respect of certain technicalities, the principle behind the amendment is of ensuring that an innovation that may have consequences for the freedom of the subject should be regulated by Parliament rather than by the direction or instruction of the Lord Advocate, however well-motivated and conceived to be in the public interest. That is a sound and substantial principle, and I hope that the Minister will give it further consideration and not reject it on technical grounds. That fundamental issue ought to be properly considered.

Photo of John McFall John McFall , Dumbarton

I am grateful for the comments of the hon. and learned Member for Fife, North-East (Mr. Campbell), who mentioned an expression coined by an American lawyer. I used the same analogy in Committee, but credited it to Lionel Daiches, QC. Perhaps it has done the rounds. The point is that the Government's proposal gives the prosecutor another bite at the cherry.

We know about miscarriages of justice, the controversy surrounding Parliament's intentions, and the recent debate in Scottish courts. Parliament should make its voice clear in the Bill. In another place, Lord Hutchinson—an eminent lawyer—referred to the Home Secretary's implied abolition of the right to silence as an act of vandalism: To make a comment of that kind is to ask the jury to give the silence some evidential value; that is, to add to the prosecution case. That is why both Royal Commissions in England pointed out that that was mischief … The whole basis of criminal law, both in Scotland and in England, is that no defendant should ever be put in that position."—[Official Report, House of Lords, 12 January 1995; Vol. 560, c. 414.] Those eloquent words go to the heart of the issue and of the amendment. We believe that they should be enshrined in the Bill.

Photo of Lord James Douglas-Hamilton Lord James Douglas-Hamilton , Edinburgh West

I shall respond briefly. I met Melvin Belli at a Canadian university. He said that he would speak only if he were provided with moose and pemmican. He was indeed a colourful figure.

I think that the hon. Member for Dumbarton (Mr. McFall) is somewhat over-concerned. At least one judge in another place has expressed support for the change that we propose. He agreed with the Government that it was a sensible move. It seemed anomalous that no comment by the prosecution was allowed when virtually every other party to the proceedings was not so inhibited. I believe that, when the judge was practising at the Bar, the hon. and learned Member for Fife, North-East (Mr. Campbell) sometimes appeared as his junior.

We believe strongly that the recommendation of the Thomson committee, which has been the subject of consultation, should be enacted. I have no doubt that its implementation and operation will be reviewed in due course. The Lord Advocate's guidelines will spell out the sort of comment that may be made and the circumstances in which it would be appropriate.

Photo of Lord James Douglas-Hamilton Lord James Douglas-Hamilton , Edinburgh West

I shall make inquiries. It is better that the hon. and learned Gentleman should be given the correct answer within a few hours rather than an immediate response, which may or may not be correct.

Photo of John McFall John McFall , Dumbarton

I thank the Minister for that response. If he makes inquiries, will he write to us?

Photo of Lord James Douglas-Hamilton Lord James Douglas-Hamilton , Edinburgh West

Most certainly.

Question put, That the amendment be made:—

The House divided: Ayes 211, Noes 246.

Division No. 161][6.40 pm
Ainsworth, Robert (Cov'try NE)Byers, Stephen
Alton, DavidCaborn, Richard
Anderson, Donald (Swansea E)Callaghan, Jim
Anderson, Ms Janet (Ros'dale)Campbell, Mrs Anne (C'bridge)
Armstrong, HilaryCampbell, Menzies (Fife NE)
Ashton, JoeCampbell-Savours, D N
Austin-Walker, JohnCann, Jamie
Barnes, HarryChidgey, David
Barron, KevinChisholm, Malcolm
Battle, JohnClapham, Michael
Bayley, HughClark, Dr David (South Shields)
Beith, Rt Hon A JClarke, Eric (Midlothian)
Bell, StuartClarke, Tom (Monklands W)
Benn, Rt Hon TonyClelland, David
Bennett, Andrew FClwyd, Mrs Ann
Bermingham, GeraldCoffey, Ann
Berry, RogerCohen, Harry
Blair, Rt Hon TonyConnarty, Michael
Blunkett, DavidCorbett, Robin
Boateng, PaulCorston, Jean
Bradley, KeithCunningham, Jim (Covy SE)
Bray, Dr JeremyCunningham, Roseanna
Brown, Gordon (Dunfermline E)Darling, Alistair
Brown, N (N'c'tle upon Tyne E)Davidson, Ian
Bruce, Malcolm (Gordon)Davies, Bryan (Oldham C'tral)
Burden, RichardDavies, Rt Hon Denzil (Llanelli)
Davies, Ron (Caerphilly)McNamara, Kevin
Denham, JohnMadden, Max
Dixon, DonMaddock, Diana
Dobson, FrankMarshall, David (Shettleston)
Donohoe, Brian HMarshall, Jim (Leicester, S)
Dowd, JimMartin, Michael J (Springburn)
Dunnachie, JimmyMartlew, Eric
Eagle, Ms AngelaMaxton, John
Eastham, KenMeale, Alan
Enright, DerekMichael, Alun
Etherington, BillMichie, Bill (Sheffield Heeley)
Evans, John (St Helens N)Michie, Mrs Ray (Argyll & Bute)
Ewing, Mrs MargaretMilburn, Alan
Fatchett, DerekMiller, Andrew
Flynn, PaulMitchell, Austin (Gt Grimsby)
Foster, Rt Hon DerekMoonie, Dr Lewis
Foulkes, GeorgeMorgan, Rhodri
Fraser, JohnMorley, Elliot
Fyfe, MariaMorris, Rt Hon Alfred (Wy'nshawe)
Galbraith, SamMorris, Estelle (B'ham Yardley)
Galloway, GeorgeMorris, Rt Hon John (Aberavon)
Gapes, MikeMowlam, Marjorie
George, BruceMullin, Chris
Gerrard, NeilMurphy, Paul
Godman, Dr Norman AO'Brien, Mike (N W'kshire)
Godsiff, RogerO'Brien, William (Normanton)
Golding, Mrs LinO'Hara, Edward
Gordon, MildredOlner, Bill
Graham, ThomasO'Neill, Martin
Grant, Bernie (Tottenham)Orme, Rt Hon Stanley
Griffiths, Nigel (Edinburgh S)Parry, Robert
Griffiths, Win (Bridgend)Pickthall, Colin
Grocott, BrucePike, Peter L
Gunnell, JohnPope, Greg
Hall, MikePowell, Ray (Ogmore)
Hanson, DavidPrentice, Bridget (Lew'm E)
Harvey, NickPrentice, Gordon (Pendle)
Henderson, DougPrimarolo, Dawn
Heppell, JohnPurchase, Ken
Hill, Keith (Streatham)Quin, Ms Joyce
Hodge, MargaretRadice, Giles
Home Robertson, JohnRaynsford, Nick
Hoon, GeoffreyReid, Dr John
Howarth, George (Knowsley North)Rendel, David
Hoyle, DougRobertson, George (Hamilton)
Hughes, Kevin (Doncaster N)Roche, Mrs Barbara
Hughes, Robert (Aberdeen N)Rogers, Allan
Hughes, Roy (Newport E)Ross, Ernie (Dundee W)
Hughes, Simon (Southwark)Rowlands, Ted
Hutton, JohnRuddock, Joan
Illsley, EricSheldon, Rt Hon Robert
Ingram, AdamSimpson, Alan
Jackson, Glenda (H'stead)Skinner, Dennis
Jackson, Helen (Shef' Id, H)Smith, Andrew (Oxford E)
Jamieson, DavidSmith, Chris (Isl'ton S & F'sbury)
Jones, Jon Owen (Cardiff C)Snape, Peter
Jones, Nigel (Cheltenham)Spearing, Nigel
Jowell, TessaSpellar, John
Khabra, Piara SSquire, Rachel (Dunfermline W)
Kilfoyle, PeterSteel, Rt Hon Sir David
Kirkwood, ArchySteinberg, Gerry
Lewis, TerryStevenson, George
Liddell, Mrs HelenStrang, Dr. Gavin
Livingstone, KenSutcliffe, Gerry
Lloyd, Tony (Stretford)Taylor, Mrs Ann (Dewsbury)
Loyden, EddieTaylor, Matthew (Truro)
Lynne, Ms LizThompson, Jack (Wansbeck)
McAllion, JohnTimms, Stephen
McAvoy, ThomasTouhig, Don
McCartney, IanTurner, Dennis
Macdonald, CalumTyler, Paul
McFall,JohnWallace, James
McKelvey, WilliamWardell, Gareth (Gower)
McLeish, HenryWatson, Mike
Maclennan, RobertWelsh, Andrew
McMaster, GordonWicks, Malcolm
Williams, Rt Hon Alan (SW'n W)Wright, Dr Tony
Williams, Alan W (Carmarthen)Young, David (Bolton SE)
Winnick, DavidTellers for the Ayes:
Wise, AudreyMr. John Cummings and
Worthington, TonyMr. Joe Benton.
Ainsworth, Peter (East Surrey)Evans, Roger (Monmouth)
Aitken, Rt Hon JonathanEvennett, David
Alexander, RichardFaber, David
Allason, Rupert (Torbay)Fabricant, Michael
Amess, DavidFenner, Dame Peggy
Ancram, MichaelField, Barry (Isle of Wight)
Arbuthnot, JamesForman, Nigel
Arnold, Sir Thomas (Hazel Grv)Forsyth, Rt Hon Michael (Stirling)
Ashby, DavidForth, Eric
Atkins, RobertFowler, Rt Hon Sir Norman
Atkinson, David (Bour'mouth E)Freeman, Rt Hon Roger
Atkinson, Peter (Hexham)French, Douglas
Baker, Nicholas (North Dorset)Fry, Sir Peter
Banks, Matthew (Southport)Gale, Roger
Banks, Robert (Harrogate)Gardiner, Sir George
Bates, MichaelGarnier, Edward
Batiste, SpencerGill, Christopher
Beresford, Sir PaulGillan, Cheryl
Biffen, Rt Hon JohnGoodlad, Rt Hon Alastair
Bonsor, Sir NicholasGoodson-Wickes, Dr Charles
Booth, HartleyGorman, Mrs Teresa
Boswell, TimGorst, Sir John
Bottomley, Peter (Eltham)Grant, Sir A (SW Cambs)
Bowden, Sir AndrewGreenway, Harry (Ealing N)
Bowis, JohnGreenway, John (Ryedale)
Brandreth, GylesGriffiths, Peter (Portsmouth, N)
Brazier, JulianHague, William
Bright, Sir GrahamHamilton, Rt Hon Sir Archibald
Brown, M (Brigg & Cl'thorpes)Hamilton, Neil (Tatton)
Browning, Mrs AngelaHampson, Dr Keith
Bruce, Ian (Dorset)Hannam, Sir John
Burt, AlistairHargreaves, Andrew
Butler, PeterHarris, David
Carlisle, John (Luton North)Hawkins, Nick
Carlisle, Sir Kenneth (Lincoln)Hawksley, Warren
Carrington, MatthewHayes, Jerry
Carttiss, MichaelHeald, Oliver
Cash, WilliamHeathcoat-Amory, David
Channon, Rt Hon PaulHendry, Charles
Chapman, SydneyHicks, Robert
Clappison, JamesHiggins, Rt Hon Sir Terence
Clark, Dr Michael (Rochford)Hill, James (Southampton Test)
Clifton-Brown, GeoffreyHordern, Rt Hon Sir Peter
Coe, SebastianHowarth, Alan (Strat'rd-on-A)
Colvin, MichaelHowell, Rt Hon David (G'dford)
Congdon, DavidHughes, Robert G (Harrow W)
Conway, DerekHunt, Rt Hon David (Wirral W)
Coombs, Anthony (Wyre For'st)Hunt, Sir John (Ravensbourne)
Coombs, Simon (Swindon)Hunter, Andrew
Cope, Rt Hon Sir JohnJack, Michael
Cran, JamesJackson, Robert (Wantage)
Currie, Mrs Edwina (S D'by'ire)Jenkin, Bernard
Davies, Quentin (Stamford)Jessel, Toby
Davis, David (Boothferry)Johnson Smith, Sir Geoffrey
Day, StephenJones, Gwilym (Cardiff N)
Deva, Nirj JosephJones, Robert B (W Hertfdshr)
Douglas-Hamilton, Lord JamesKey, Robert
Dover, DenKirkhope, Timothy
Duncan, AlanKnapman, Roger
Duncan-Smith, IainKnight, Mrs Angela (Erewash)
Dunn, BobKnight, Greg (Derby N)
Durant, Sir AnthonyKnight, Dame Jill (Bir'm E'st'n)
Dykes, HughKnox, Sir David
Eggar, Rt Hon TimKynoch, George (Kincardine)
Elletson, HaroldLait, Mrs Jacqui
Emery, Rt Hon Sir PeterLamont, Rt Hon Norman
Evans, David (Welwyn Hatfield)Lang, Rt Hon Ian
Evans, Nigel (Ribble Valley)Lawrence, Sir Ivan
Legg, BarryShaw, Sir Giles (Pudsey)
Leigh, EdwardShephard, Rt Hon Gillian
Lennox-Boyd, Sir MarkShepherd, Colin (Hereford)
Lidington, DavidShepherd, Richard (Aldridge)
Lightbown, DavidSims, Roger
Lilley, Rt Hon PeterSmith, Sir Dudley (Warwick)
Lord, MichaelSpeed, Sir Keith
Luff, PeterSpencer, Sir Derek
Lyell, Rt Hon Sir NicholasSpicer, Sir James (W Dorset)
MacGregor, Rt Hon JohnSpicer, Michael (S Worcs)
MacKay, AndrewSpink, Dr Robert
Maclean, DavidSpring, Richard
McLoughlin, PatrickSproat, Iain
McNair-Wilson, Sir PatrickSquire, Robin (Hornchurch)
Madel, Sir DavidStanley, Rt Hon Sir John
Maitland, Lady OlgaSteen, Anthony
Malone, GeraldStephen, Michael
Mans, KeithStern, Michael
Marland, PaulStreeter, Gary
Marlow, TonySumberg, David
Marshall, John (Hendon S)Sweeney, Walter
Marshall, Sir Michael (Arundel)Sykes, John
Martin, David (Portsmouth S)Taylor, Ian (Esher)
Mates, MichaelTaylor, John M (Solihull)
Mawhinney, Rt Hon Dr BrianTaylor, Sir Teddy (Southend, E)
Merchant, PiersTemple-Morris, Peter
Mitchell, Sir David (NW Hants)Thompson, Sir Donald (C'er V)
Moate, Sir RogerThompson, Patrick (Norwich N)
Monro, Sir HectorThornton, Sir Malcolm
Montgomery, Sir FergusThurnham, Peter
Neubert, Sir MichaelTownsend, Cyril D (Bexl'yh'th)
Newton, Rt Hon TonyTredinnick, David
Nicholls, PatrickTrotter, Neville
Nicholson, David (Taunton)Twinn, Dr Ian
Nicholson, Emma (Devon West)Vaughan, Sir Gerard
Norris, SteveViggers, Peter
Onslow, Rt Hon Sir CranleyWalden, George
Ottaway, RichardWalker, Bill (N Tayside)
Page, RichardWaller, Gary
Patnick, Sir IrvineWard, John
Pattie, Rt Hon Sir GeoffreyWardle, Charles (Bexhill)
Pawsey, JamesWaterson, Nigel
Peacock, Mrs ElizabethWells, Bowen
Pickles, EricWhitney, Ray
Powell, William (Corby)Whittingdale, John
Redwood, Rt Hon JohnWiddecombe, Ann
Richards, RodWiggin, Sir Jerry
Riddick, GrahamWilkinson, John
Robathan, AndrewWilletts, David
Roberts, Rt Hon Sir WynWinterton, Mrs Ann (Congleton)
Robertson, Raymond (Ab'd'n S)Winterton, Nicholas (Macc'f'ld)
Robinson, Mark (Somerton)Wood, Timothy
Roe, Mrs Marion (Broxbourne)Young, Rt Hon Sir George
Rowe, Andrew (Mid Kent)
Rumbold, Rt Hon Dame AngelaTellers for the Noes:
Sackville, TomDr. Liam Fox and
Sainsbury, Rt Hon Sir TimothyMr. Simon Burns.

Question accordingly negatived.