§ 3.28 p.m.
§ The Lord Advocate (Lord Mackay of Clashfern)
My Lords, with your Lordships' permission, I should like to make a Statement on the case of alleged rape and serious assault in Glasgow which has been the subject of much recent comment.
In Scotland, the Lord Advocate is answerable to Parliament for the conduct of criminal prosecutions. It is, however, the practice not to divulge any details of the evidence in particular cases. This is intended for the protection of all the parties involved, and it is particularly important in the present case, where it is possible that the complainer may at some future date make an application to the High Court of Justiciary to bring a private prosecution; it is particularly important in these circumstances that nothing is said that might affect any such application, the interests of the complainer, or the interests of any person who may be accused by her, and who under our legal system is entitled to the presumption of innocence. Subject to these restraints, I wish, however, to be as frank and open as possible about this matter to the House and to the public on account of the anxiety aroused by the case.
698 In this case the Procurator Fiscal, on receipt of information from the police, charged four youths with rape and with attempted murder. On reporting the case to Crown counsel in Edinburgh, they, in the exercise of their responsibility as independent prosecutors, indicted three of these youths with one charge of rape and one charge of assault to severe injury, permanent disfigurement and danger to life. The case was put out for a sitting of the High Court in Glasgow in June 1981. When the victim appeared it was apparent that she was not in a fit state to give evidence, and on the instructions of Crown counsel she was examined by a consultant psychiatrist. In the interests of the woman I would not wish to reveal the details of the report save to say that her medical history since the events complained of caused the psychiatrist to conclude that a court appearance at that time would be detrimental to her health and carried a hazard of suicide both before and after the trial, whatever the result. Accordingly, the case was not called.
Thereafter the decision had to be taken whether the trial should be further postponed, or whether the Crown should proceed with the whole, or part, of the indictment in the absence of the complainer's evidence, or whether the case should be dropped altogether. In coming to that decision Crown counsel was principally influenced by the likely effect on her health of the prospect of having to give evidence.
Given that the complainer was not at that stage able to give evidence, the difficult decision arose whether on the remaining evidence available the Crown should proceed with both or one of the charges. The view was taken by Crown counsel that in the light of all the circumstances in the absence of the complainer it would not have been proper to proceed on the whole or any part of the indictment.
With regard to obtaining the evidence of the com-plainer in the situation where she was not able to give her evidence in court, it has been suggested that her evidence could have been taken on commission under Section 32 of the Criminal Justice (Scotland) Act 1980. In terms of subsection (2)(b) of the section, the application to take evidence in this way may only be granted if the judge is satisfied that there would be no unfairness to the other party or parties. I am of opinion that an application in this case to take the evidence on commission of the complainer would not have been granted.
In the light of the information available to him Crown counsel considered that the prospect of sufficient improvement in the complainer's health to alter the situation was not sufficient to justify keeping the proceedings alive any further and, accordingly, instructions were given that the case should be dropped. Once that has been clone a prosecution at my instance is no longer possible. Crown counsel exercise their independent professional judgment in coming to decisions on matters such as those I have referred to, but in cases of difficulty they may, and do, refer questions for my decision. I have decided to instruct that no decision to drop proceedings altogether in any case of murder or rape should be taken before the hearing of evidence has begun without the question being referred to me for decision.
§ 3.33 p.m.
§ Lord Ross of Marnock
My Lords, I think we are grateful to the Lord Advocate for the Statement he has made and the speed with which he has made it, bearing in mind that he was abroad yesterday and the urgency for a Statement may have come as a surprise to him. He will appreciate that this is the third Statement from the Crown Office, and that this last one is much more in line with the first one.
I do not know whether the noble and learned Lord saw the newspapers yesterday. Bear in mind that the whole gravamen of this Statement today is that the reason why the case was dropped was the effect on the health of the woman who was the victim of this brutal, savage, obscene attack. The report says:I believe that the decision was a correct one. However, there is no doubt in my mind that the matter of this unfortunate woman's mental stability was irrelevant".That was the Solicitor-General for Scotland yesterday. So it comes to this: that we are more confused than ever by the Statement that has now been made.
It was said by the Lord Advocate, and rightly, that the Crown Office tends not to give reasons, or give information. But this is an exceptional case. It was not just the debatable question that always arises in respect of rape. There was no doubt about the serious assault on the woman. She required 168 stitches. She is scarred for life, physically and probably mentally as well. So from that point of view, bearing in mind the timescale—November 1980, the charging of the youths; still in November 1980, committal for trial at Glasgow, where I gather they were committed to the High Court; they had pleaded not guilty—you cannot drop proceedings like this and say nothing about it. But the Lord Advocate comes along at this date and suggests that one of the reasons why he can give us no further information is because of the possibility of a private prosecution by a woman who, he tells us, is not fit to give evidence in any court. When was the last private prosecution? Shall I tell him? Over 70 years ago. That is how rare it is.
Therefore, I feel that the noble and learned Lord is scraping the barrel for some reason or other in respect of not giving us information. The fact is that this case cannot be revived, and so anyone is free to say what they like about it. The newspapers who normally would not, if proceedings are continuing, be able to say anything, have disclosed—and I should like information about this; if he is as obdurate as his Statement he is not going to give me the information—that they have in their possession an alleged confession by one of the youths; that another youth is prepared to give an eye-witness account.
There is the whole question that you cannot commit a crime like this without trails of blood all over the place. The woman herself said that she turned up at the first day hearing and was prepared to give evidence. Whatever else happens, would I be right in saying that in this case justice has not been done? It is a serious matter for Scottish law if people in this same position so torture their victims, or alleged victims, that the proceedings against them are dropped.
I hope that the Lord Advocate will go a little further. I appreciate and am grateful for what he said at the end of his Statement, that in future a thing like this would be dealt with by himself or by a Law Officer 700 —I presume that this was not dealt with by a Law Officer—and that there is some hope to have renewed confidence in the fact of the Scottish legal system. But I consider that this Statement is most unsatisfactory, and I really think we ought to have some form of judicial inquiry into the events in this case.
§ 3.37 p.m.
§ Lord Wigoder
My Lords, I make no apology for not seeking to increase the hysteria with which this whole subject has been surrounded in the course of the last few weeks. One gets the impression from the popular press that rape has become the British national pastime. I do not seek in any way to minimise the gravity of such an offence when it takes place, nor the fact that in a very large number of such cases it may be necessary to send the offender to prison. But to put the matter in general perspective it is right, it it not—the Lord Advocate will no doubt agree—that in Scotland, for the last year for which figures were available, there were some 34 people convicted of this offence? That was about a quarter of the total number of offences alleged as reported to the police, and if one takes account of the experience of the rape crisis centres in England, it looks as though the total number of incidents may perhaps have to be increased by another 20 per cent. or 25 per cent. altogether. Not perhaps sufficient to justify quite the outcry that is at the moment taking place.
So far as this incident is concerned, the particular case which is the subject of the Statement today, is it not perfectly clear from the noble and learned Lord's Statement that the decision as to whether or not to prosecute in Scotland is taken on totally independent grounds by totally independent lawyers? Is it not highly desirable that that situation should continue? Do the lawyers not have to weigh up with some care what the state of the evidence is?—whether the complainant is available to give evidence; whether, if she is available, her evidence is likely to be credible; and, above all, both in Scotland and in England, whether there is independent evidence available which will support the evidence of the complainant and implicate the defendants in the commission of the offence. Is it not absolutely essential to the administration of justice in both countries that these decisions should be left to be taken on an independent basis and not be subject to political pressures?
§ 3.40 p.m.
§ Lord Mackay of Clashfern
I think the noble Lord, Lord Jenkins, will have an opportunity a little later, my Lords; it is the practice, I believe, for me first of all to respond to the speakers from the Front Bench. As for the remarks of the noble Lord, Lord Ross, I am grateful to him for what he said at the beginning of them. With regard to his comments about statements by others, I am not in a position to say whether those statements have all been correctly reported. But I am in a position to say that I have personally, since 701 returning from Luxembourg last night, looked at this matter with all the care and concern that I believe your Lordships would expect of me, and it is in response to that that I say that the principal factor which gave rise to this decision was the one to which I referred; namely, the concern of the Crown counsel involved for the health and safety of this woman, who had, as the noble Lord said, suffered a great deal already.
Crown counsel in this situation has a very difficult decision to make, and I am sure the noble and learned Lord sitting opposite me, with his great experience of these matters, will agree that the decisions are extremely delicate. Consider the situation of Crown counsel, in the light of his information, deciding, "This is one woman, but the whole interests of justice are more important. Let us go ahead"; and suppose that the case failed in the High Court and the people indicted were all acquitted, and then the terrible hazard to which the psychiatrist had referred had occurred. What would be the feeling of Crown counsel in that position? He would have done his job as best he could, but the consequences were very serious. I have no doubt at all in my mind—and I hope your Lordships will accept this—that Crown counsel considered this matter and did his best to weigh up all the factors; and the noble Lord, Lord Wigoder, very fully and well, if I may say so with respect, summarised what those factors are. But that, I am satisfied, was the factor that was strongest in his mind.
The noble Lord suggests that I am leaving it, as it were, to a woman in this condition to carry on. The problem for me is that Scots law says that once intimation is made on behalf of the Lord Advocate to accused persons that the charges against them are not to be proceeded with, I can do nothing further; I cannot indict these people again. Therefore, the question of what can be done is important. If this lady's position is now different and if she, being advised, for herself considers that the risks are not as great as we had thought, or that the situation has changed in such a way that it would be perfectly safe to proceed, then there is an avenue open to her to make an application. It would not be right for me to speculate, of course, on the chance of success. It is, I ask your Lordships to accept, for that reason and that reason only that I do not want to go into the detail of the evidence in this particular case. It is for no other reason. So far as I am concerned, I have nothing whatever to hide, nor I believe has Crown counsel responsible for making the decision. But I have to take account of the interests of this lady and any responsibility that may exist of proceedings for the future.
I am much obliged to the noble Lord, Lord Wigoder, for the way in which he put the problem in perspective against the general background. I believe it is important that decisions such as these in relation to prosecution are taken on independent grounds by independent people, and the observation which I made at the end of the Statement was intended not to detract from that but to give me a chance, while the opportunity is still there, of reviewing with Crown counsel in cases of this seriousness whether or not the irrevocable step should be taken. So far as I am aware, there is nothing further I can do in relation to this particular case. I wish to make it clear of course that Crown counsel and my colleague the Solicitor-General for Scotland 702 and myself are as determined as anyone in your Lordships' House to do our best to prosecute this type of terrible crime—we try to do that; there are many difficulties, as your Lordships know—and this particular case has certainly caused a great deal of concern.
§ Lord Wilson of Langside
My Lords, there are several questions I wish to put to the noble and learned Lord, and I preface them by saying that I readily appreciate the difficulty of his position, having been out of the country until yesterday, and I accept without qualification his assurance of the care which he has given to these matters; and I have some sympathy with the views expressed by the noble Lord, Lord Wigoder.
First, does the noble and learned Lord agree that the restraints on him in disclosure to this House, having regard to the possibility of a public prosecution, are quite minimal? Secondly, he said, as I understood him, that the view was taken by Crown counsel that in the light of all the circumstances and in the absence of the complainer it would not have been proper to proceed. Can he say whether the evidence remaining, without the evidence of the complainer, was sufficient in law to entitle a jury, had it believed it, to convict the accused of any criminal charge on the indictment? Thirdly, he referred to the possibility of invoking Section 32(2)(b) of the Criminal Justice (Scotland) Act 1980. Does he not think it would have been prudent to give further considerstion to that possibility at the time, since of course one cannot tell at this stage what might have been the approach to this matter? And in the whole circumstances, does he not think it would have been more sensible at least to test that possibility?
Fourthly, he referred to Crown counsel making his decision in the light of the information available to him. What precisely was that information Did he consider further precognition of the complainer to confirm the psychiatrist's impression or otherwise? Did he consider taking a further medical opinion to see whether the situation was really as bad as represented in the first psychiatrist's opinion? Or was it simply accepted that they must proceed on the basis that what the psychiatrist said was right, in spite of the fact that, since, the lady in question has been saying she was always ready, willing and able to give evidence?
§ Lord Derwent
My Lords, I am sorry to interrupt the noble Lord, but would he not agree that this is developing into a debate?
§ Lord Wilson of Langside
With respect, my Lords, I think not, and I certainly hope I do not appear to be doing that. This matter is one of the utmost concern to the administration of criminal justice in Scotland and I am certain—
§ The Chancellor of the Duchy of Lancaster (Baroness Young)
My Lords, I recognise that noble Lords in all parts of the House agree that this is a serious matter, but I think the noble and learned Lord, Lord Wilson, appreciates that if he refers to the Companion to Standing Orders it is there said that Statements should not turn into debates. If he could restrict himself to his last question, I think that would be the wish of the House.
§ Lord Wilson of Langside
Of course, my Lords, I accept the noble Leader's ruling, and I apologise. This is my final question. Are the reports in the press and on the BBC that the Procurator Fiscal's office in Glasgow was gravely concerned with the Crown Office decision well founded? If so, was anything done to clarify the position at that time, and should not this case have gone to a Law Officer at a very much earlier stage?
§ Lord Mackay of Clashfern
My Lords, I do not agree that the restrictions in regard to this matter arising from the possibility of private prosecution are quite minimal. I believe that it would be quite wrong for me in this situation to examine the detail of the evidence or to deal in detail with the matters which have been raised about the particular evidence in this case.
With regard to the question relating to the possibility of having made an application for the evidence to be taken on commission, I have given this matter the best consideration that I can and have reached the conclusion that in this case an application would not succeed. Of course one can always test matters by going to court, but I believe that it is not the function of the prosecutor to make law in that way. I would respectfully suggest that he has to decide whether in all the circumstances it is appropriate to proceed. I would suggest that prosecuting people is not the way to find out and to develop the law, though of course on occasion in relation to prosecutions important new points of law are determined. Therefore I do not think that it would be right for me to continent further on these matters, except to say that Crown counsel involved did, I think, consider fully the questions which have been discussed relating to the evidence.
§ Lord Renton
My Lords, while I thoroughly accept what my noble and learned friend has said with regard to his own position in this matter—namely, that he cannot take any further action—I should like to ask him to inform the House whether it is possible in Scotland, as it is in England, for the prosecution when offering no evidence nevertheless to ask the court that the charges may remain on the record, so that if evidence is forthcoming, or a witness is able to attend at a later date, the case may then be proceeded with?
§ Lord Mackay of Clashfern
Yes, my Lords, it would be possible instead of intimating that no proceedings are to be taken, to intimate that the particular case is not to be proceeded with meantime. Of course, in considering what he is going to do in that connection, the prosecutor in Scotland has to have regard to the interests of all parties, and that was a matter that I sought to refer to in the earlier Statement.
Lord Paget of Northampton
My Lords, will the noble and learned Lord agree that, as pointed out by the noble Lord, Lord Wigoder, a very great danger in these cases is that when something very dreadful such as this case induces a national hysteria, one seeks either to turn that hysteria into legislation or into a twisting of 704 the law? Will the noble and learned Lord make it very clear indeed that in a case of this kind evidence on commission, where the accuser does not appear and is not subject to cross-examination before the court, is quite impossible and would involve a gross breach of civil rights?
With regard to private prosecutions, are they in Scotland, as they are in England, under the control of the Attorney-General? If that be so, will he be very careful indeed to look at the situation of a prosecution brought privately here, which would almost certainly be promoted and financed by the press?—probably a very dangerous thing to happen.
§ Lord Mackay of Clashfern
My Lords, in Scotland private prosecution has been extremely limited, and as the noble Lord, Lord Ross of Marnock, pointed out, the cases are extremely rare and very few have been successful in recent times. I think that the last successful case that took place without the consent of the Lord Advocate was in 1909. However, it is the court that has the control in relation to that, and if it is a private prosecution that is in issue, an application has to be made to the court—
§ Lord Monson
My Lords, let us suppose that the unfortunate woman had died from her injuries, which might well have happened. Would the same decision not to prosecute have been taken, or would a prosecution have been initiated on the evidence available?
§ Lord Mackay of Clashfern
My Lords, I think that that is a hypothetical question, and I am very glad indeed that it did not arise. From the most recent reports it appears that the woman seems to be in reasonable health.
§ Baroness Young
My Lords, we have had nearly half an hour on this Statement. May I suggest to the House that we hear the noble Lord, Lord Jenkins, and then move on to the next business.
§ Lord Jenkins of Putney
My Lords, I am most grateful to the Leader of the House because it was precisely this point that my wife raised with me this morning. She said, "If they had killed her, they would have been prosecuted". I think that my wife was right, and although what noble Lords have said here this afternoon may carry weight in this House, there is a large amount of lay opinion outside the House which will not understand the position. Therefore, I hope that in one way or another some way will be found to put the matter to rights.
§ Lord Mackay of Clashfern
My Lords, all I can say is that I have done my best to explain the position as simply as possible without undue technicality, in the 705 hope that not only your Lordships' House, but members of the public who are concerned about and interested in this very important matter, will understand what I have been trying to say.