HC Deb 17 October 1990 vol 177 cc1227-47

'.—(1) Subject to subsections (2) and (3) below, where a child has been cited to give evidence in a trial, the court may, on an application being made to it, authorise the giving of evidence by the child by means of a live television link.

(2) The court may grant an application under subsection (1) above only on cause shown having regard in particular to—

  1. (a) the possible effect on the child if required to give evidence, no such application having been granted; and
  2. (b) whether it is likely that the child would be better able to give evidence if such application were granted.

(3) In considering whether to grant an application under subsection (1) above, the court may take into account, where appropriate, any of the following—

  1. (a) the age and maturity of the child;
  2. (b) the nature of the alleged offence;
  3. (c) the nature of the evidence which the child is likely to be called on to give; and
  4. (d) the relationship, if any, between the child and the accused.'.—[Lord James Douglas-Hamilton.]

Brought up, and read the First time.

Lord James Douglas-Hamilton

I beg to move, That the clause be read a Second time.

Mr. Deputy Speaker

With this we may take the following: Government new clauses 25 to 27.

New clause 1—Evidence of children on commission in criminal proceedings— '.—(1) Notwithstanding section 32 of the Criminal Justice (Scotland) Act 1980 and subject to section (Circumstances in which procedures may be authorised) of this Act, where a child has been cited to give evidence in a trial, whether under solemn or summary procedure, the court may, on an application being made to it at an appropriate time, appoint a commissioner to take the evidence of the child. (2) The proceedings before a commissioner under this section shall be recorded by video recorder. (3) The accused shall not be present in the room where the proceedings under this section are taking place except with the leave of the commissioner, but the accused, if not present, shall be entitled to watch and hear those proceedings by such other means as seem suitable to the commissioner. (4) In subsection (1) above "at an appropriate time" means—

  1. (a) in relation to solemn proceedings, at any time before the oath is administered to the jury;
    2. 1228
  2. (b) in relation to summary proceedings, at any time before the first witness is sworn, or
  3. (c) in exceptional circumstances, in relation to either solemn or summary proceedings, during the course of the trial.'.

New clause 2—Use of screens in taking evidence of children in criminal proceedings— '.—(1) Subject to section (Circumstances in which procedures may be authorised) of this Act, where a child has been cited to give evidence in a trial, whether under solemn or summary procedure, the court may, on an application being made to it, authorise the use of a screen to conceal the accused from the sight of the child, notwithstanding that such use of a screen is objected to by or on behalf of the accused. (2) Where a screen is used in pursuance of this section, arrangements shall be made to ensure that the accused is able to watch and hear the child while the child is giving evidence.'.

New clause 3—Evidence of children through television link in criminal proceedings— '.—Subject to section (Circumstances in which procedures may be authorised) of this Act, where a child has been cited to give evidence in a trial, whether under solemn or summary procedure, the court may, on an application being made to it, authorise the giving of evidence by the child by means of a live television link.'.

New clause 4—Circumstances in which procedures may be authorised— '.—(1) The court may grant an application under sections (Evidence of children on commission in criminal proceedings), (Use of screens in taking evidence of children in criminal proceedings) or (Evidence of children through television link in criminal proceedings) of this Act only on cause shown having regard in particular to—

  1. (a) the possible effect on the child if required to give evidence in open court; and
  2. (b) whether it is likely that the child would be better able to give evidence if not required to do so in open court.
(2) In having regard to the matters referred to in paragraphs (a) and (b) of subsection (1) above, the court may take into account, where appropriate, any of the following—
  1. (a) the age and maturity of the child;
  2. (b) the nature of the alleged offence;
  3. (c) the nature of the evidence which the child is likely to be called on to give; and
  4. (d) the relationship, if any, between the child and the accused.'.
Government amendment No. 127.

4.30 pm
Lord James Douglas-Hamilton

This is perhaps the most important issue before us this afternoon. The clauses concern the protection of children in criminal cases, about which there has been widespread concern, and it is right that they should be before us today. There has been considerable concern about criminal trials where child witnesses under stress have been unable to give their evidence properly. The hon. Member for Greenock and Port Glasgow (Dr. Godman) tabled a number of amendments in Committee, and made it clear that he wished to return to the matter on Report.

The discussion is centred on the use of a live television link arrangement, under which the child witness would be in a room separate from the court room and would give evidence through closed-circuit television. We have decided that the arrangement should be progressively introduced in Scotland. It is intended—subject to consultation with the judiciary—that appropriate equipment should be available initially in Edinburgh and Glasgow.

The arrangement is based on the recommendation of the Scottish Law Commission in its "Report on the evidence of Children and Other Potentially Vulnerable Witnesses", published earlier this year. The Commission believes that, in many cases, children will be able to give evidence in court by conventional means.

Live television links should be required in relatively few cases. Their use is accordingly to be at the discretion of the trial judge, according to the statutory criteria set out in the first Government amendment. It would of course reduce the expected benefits from the use of the live television link if the child witness still had to identify the accused in court in a face-to-face dock identification. Accordingly, a further Government amendment deals with evidential requirements.

There are also further provisions dealing with sheriff court jurisdiction and the transfer of sheriff court cases within a sheriffdom. The jurisdiction provision enables a case to be taken anywhere in a sheriffdom, and the transfer of a case within a sheriffdom will be allowed when an application for the use of a live television link has been approved. Without these transfer provisions, it would be difficult to operate the new procedure efficiently.

We have reached the view that we should not—at least, in the meantime—implement the Scottish Law Commission's recommendations with regard to a video—recorded pre-trial deposition procedure and a statutory provision relating to the use of screens. The deposition procedure would involve an examination of the child witness, ideally before the judge who was to preside at the trial. Much the same purpose will be served by a live television link. We have decided that it is appropriate to introduce the live television link procedure first, and monitor its operation carefully before considering other statutory measures.

Mr. Dalyell

Will the Minister say why he thinks that he and his Department know better than the Law Commission? I thought that the Law Commission was rather convincing.

Lord James Douglas-Hamilton

I would not say that I knew better than the Law Commission. I have discussed the matter in detail with my hon. and learned Friend the Member for Perth and Kinross (Sir N. Fairbairn). [Interruption.] The hon. Member for Garscadden is expressing scorn, but my hon. and learned Friend probably has more experience of criminal cases than any other Scottish Member of Parliament. He has considerable knowledge of the subject.

Mr. Dewar

rose—

Lord James Douglas-Hamilton

I will give way to my hon. Friend the Member for Tayside, North (Mr. Walker), as I have not done so yet.

Mr. Bill Walker (Tayside, North)

My hon. and learned Friend the Member for Perth and Kinross (Sir N. Fairbairn) asked me, if the opportunity arose, to express his apologies for not being present, and to state clearly that he supports what the Government are doing and believes that it is right.

Lord James Douglas-Hamilton

I thank my hon. Friend. My hon. and learned Friend the Member for Perth and Kinross told me the same.

The Government take the view they do because to adopt another arrangement could be prejudicial to the accused. I myself have been involved in a court case in which a child witness identified a boy as guilty of murder, but under cross-examination admitted that he had told a lie on the instructions of relatives. I have seen that happen. That case involved youths who had kicked another youth to death. If that child's claim had not been broken down under cross-examination, an innocent person could easily have been convicted of murder. As well as the protection of children, we must bear in mind the importance of fairness to the accused.

Mr. Menzies Campbell

I cannot help making the observation that, if the hon. Member for Tayside, North (Mr. Walker) now has power of attorney for the hon. and learned Member for Perth and Kinross (Sir N. Fairbairn), we may have to examine the capacity of the latter.

Taking the three new clauses together, I find it difficult to grasp the practicalities of defending an accused person in circumstances in which a television link has been allowed by the court, and the extent to which cross-examination of a child may be possible. If I read new clause 26 correctly, cross-examination of a child on the issue of identification may not be excluded by way of statute. Practical difficulties exist that remain to be explained.

Lord James Douglas-Hamilton

In the case of a child who had been abused in one way or another, dock identification could be very upsetting and distressing for that child. We believe that a video link could provide an effective means of taking evidence. Identification might be made on some former occasion. One Glasgow police station has a one-way mirror that allows women who have been raped, for example, to identify their attackers without suffering immense additional distress.

Dr. Godman

I am confused by the Minister's use of the terms "closed-circuit television link" and "video link". I refer him to a comment that he made at the beginning of our debate yesterday afternoon: I intend to accept the central point on video evidence. That does not include every aspect of new clause 1".—[Official Report, 16 October 1990; Vol. 177, c. 1060.] Why has the Minister changed his mind?

Lord James Douglas-Hamilton

I want to make it clear that I do accept the proposals for a video link, but the evidence goes further than that, and suggests that there is a risk that it could be prejudicial to the accused.

As to cross-examination, the television link would be continuous. The provision concerning identification would apply only where the court had granted an application for use of the television link procedure. Where a child gives evidence that he or she recalls having previously identified the person alleged to have committed the offence, the evidence of a third party of that identification would be admissible as evidence of such identification. There remains for determination by the court the sufficiency of that evidence—whether the Crown has sufficiently proved the identification. Accordingly, fairness to the accused would not be prejudiced.

Mr. Dalyell

This is a complex subject, and Ministers are certainly entitled to make decisions on the basis of their own experience. I personally would greatly value the views of the hon. and learned Member for Perth and Kinross (Sir N. Fairbairn) on such a subject. Equally, the House is entitled to know in detail why the Government have overturned the Law Commission recommendation, especially since its Lord President, Lord Hope, is currently proposing a scheme.

Do the Government have the agreement, in their view, of the Lord President? Has he given advice to the effect that the Government, rather than the Law Commission, are correct? I do not want to make a party point, because none is to be made, but it is a matter of considerable importance to a number of our constituents. Again, I can think of a personal case in which I was tangentially involved on a constituency basis.

Lord James Douglas-Hamilton

I genuinely do not think that the Lord President has been approached to ask whether he supports the Law Commission's view in opposition to any other point of view on this matter. He is certainly aware of the Government's proposals, as the hon. Member for Linlithgow will be aware.

The Scottish Law Commission in its report recorded a number of reservations expressed to it about the use of screens. The Scottish court is exploring technical aspects of the use of screens and we would wish to monitor the present use before reaching a concluded view as to the needs of the statutory provision on the line recommended by the Scottish Law Commission.

Undoubtedly hon. Members are aware of the welcome memorandum on guidance on child witnesses which was issued by the Lord Justice-General at the end of July. The purpose of the memorandum is to provide assistance to judges in the exercise of their discretionary powers to put a child at ease—for example, by removing wigs and gowns. The adoption of other measures recommended in the Lord Justice-General's memorandum can be expected to make a substantial contribution to reducing stress for child witnesses. We wish to know how wider use of such measures will help before we consider further statutory or other innovations.

Two other Government amendments provide necessary definitions and make necessary adjustments to the long title of the Bill. The Government amendments provide a coherent and practical set of provisions. We wish to respond quickly to the opportunity to legislate now to bring in closed circuit television for child witnesses.

The new clauses tabled by the hon. Member for Greenock and Port Glasgow are not workable as they stand, in the absence of a provision enabling cases to be transferred and doing away with dock identification. Accordingly, I invite the House to support the Government amendments.

4.45 pm
Dr. Godman

I thank the Minister for responding as he did to my new clause 3. However, I wish to speak to new clause 1 which is also in my name. Incidentally, I shall not press new clause 3 as it was intended to elicit a comprehensive response from the Minister and I thank him for his positive response.

New clause 24 not only brings Scots law into line with English law in terms of section 32 of the Criminal Justice Act 1988, but is an improvement on that English legislation. I think that I am right in saying that there are now 22 English Crown courts with closed circuit television and that there is a fair geographical spread throughout England of what has become known as "CCTV". There is some confusion between closed-circuit television and video recordings. The Minister was talking about closed circuit television.

My aim in new clause 1 is simple: to give added protection to children when they give evidence in criminal proceedings involving sex abuse or physical abuse.

In the past 10 months, two major reports on this deeply troubling matter have been published in England and Scotland. I refer to Judge Pigot's Home Office advisory group's report on video evidence published in September 1989 and to the 125th report of the Scottish Law Commission entitled, "Report on the evidence of Children and Other Potentially Vulnerable Witnesses" which was published about nine months ago.

In the context of new clauses 1, 2 and 4 and of the Minister's new clauses, English and Scottish legal systems have a good deal to learn from each other. I was much taken by the observations offered by Spencer and Flin in their book, "The Evidence of Children. The Law and the Psychology"—Spencer is a Cambridge fellow and Dr. Rhona Flin is a psychologist at the Robert Gordon's Institute in Aberdeen. In their book, published by Blackstone Press earlier this year, they said about evidence given by children:

It is now almost 400 years since James VI of Scotland became James I of England, and nearly 300 years since the Act of Union: yet little knowledge about the Scottish legal system seems to have spread south of the Border. In Cambridge University Library there has been a copy of Dickson's classic treatise on the law of evidence in Scotland since 1864, and when the first author consulted it in 1989, he found that every page remained uncut! I believe that if the English were more familiar with our system of children's hearings, which was set up in 1971, they would establish something akin to that system in England. It is a matter of considerable regret to me that, despite a near consensus in the House, the Government have failed to use the Children Act 1989 as a step towards the creation of an informal system of courts south of the border. In that regard, England and Wales are some 20 years behind Scotland. However, in the matters dealt with by my new clauses Scotland lags behind England. The Minister is rectifying that to some extent in his new clauses.

In support of new clause 1 and the use of video-recorded interviews with children as evidence, I intend to quote from both the reports that I mentioned. I am disappointed by the Minister's comments on the use of such video-recorded interviews as evidence. I understand that such legislation, involving the use of such video-recorded interviews, will be introduced south of the border. If that is the case, we shall again be lagging behind in Scotland.

I confess that to draw up my new clause I plagiarised the draft Bill that was appended to the Scottish Law Commissioner's report. I make no apology for that, because, among other things, it has elicited a most heartening response on closed-circuit television from the Minister. I still hope to persuade the House on the need for a similar response to new clause 1. My aim is to lessen the appalling burden imposed on children, without harming the interests of the accused.

I think that the Pigot report may lead to new legislation south of the border. On page 69, it states: We recommend that at trials on indictment for violent and sexual offences and offences of cruelty and neglect and at comparable trials in the juvenile courts"— which is the English system— video-recorded interviews with children under the age of 14 conducted by police officers, social workers or those whose duties include the investigation of crime or the protection of the welfare of children should be admissible as evidence. Where the offence charged is of a sexual nature this provision should extend to child witnesses under the age of 17". That is a radical proposal, but I accept it wholeheartedly.

At page 18, paragraph 416, the Scottish Law Commission's report said: On the whole matter we accordingly recommend: 10(a) where a child has been cited to give evidence in a criminal trial, whether under solemn or summary procedure, it should be competent, as an alternative to adducing the child as a witness in court, to take the evidence of that child on commission prior to the date of the trial or, exceptionally, during the course of the trial. This excellent report goes on: (b) the taking of evidence on commission should, so far as practicable, take place in a room which is congenial and non-threatening so that the child may feel at ease during the proceedings. I heartily endorse that recommendation.

The video-recorded interviews to which I refer are far removed from precognitions under Scottish law. Precognition is The preliminary examination of witnesses or persons likely to know about the facts of a case, in order to obtain, with a view to trial, a general knowledge of the available evidence; especially in criminal law, an examination by a procurator-fiscal of those who can give evidence regarding a crime or offence (in older practice conducted by or before a sheriff or other judge ordinary)". That quotation is taken from "The Oxford English Dictionary", second edition, volume XI. "The Concise Scots Dictionary" simply states that precognition is a statement made by a witness during this investigation. Such precognitions are usually conducted by ex-police officers, but it is not unknown for others to carry out such work, even though they may have had no training. The video-recorded interviews provided for by my new clause 1 would have to be spontaneous and voluntary. They should certainly not be based on interrogation and they should not be conducted by over-zealous professionals. I recognise that there are major difficulties; they do not have to be pointed out to me by the hon. and learned Member for Fife, North-East (Mr. Campbell), or by my hon. and old Friend the Member for Glasgow, Garscadden (Mr. Dewar). Precognitions have always caused difficulties for our courts.

I am reminded of Lord Justice Clerk Thomson's comment in Kerr v. H.M. Advocate, Scottish Law Times 1958, volumne 82. He said that Precognosers as a whole appear to be gifted with a measure of optimism which no amount of disillusionment appears to damp. As with precognitions, the interviews of children present problems because of their limited powers of conversation and their immaturity.

In the Butler-Sloss report the observation is offered that Not all members of the judiciary"— this is the English judiciary— are in favour of video recordings. That comment, however, appears to be based on anecdotal evidence, perhaps obtained during conversations with fellow judges over a glass of sherry. No research evidence is offered in that report for the reservation concerning video-recorded interviews being used as depositions.

The commissioner to whom the Law Commission refers would need to be chosen carefully, perhaps initially from the ranks of reporters to the children's panels. I have every confidence in their integrity. My hon. Friend the Member for Garscadden will readily agree with that comment, because he was employed for a short time as a reporter. Professionals of that kind could, in the early days, take on the role of commissioner in order to obtain such evidence. A young child is much better able to remember dreadful incidents shortly after the perpetrator has committed them rather than in a courtroom six, eight, 10 months, or even a year or 18 months later. That is why I say that video-recorded interviews should be used as evidence in such cases.

I regret that we are dealing with these important issues on Report. They are worthy of lengthy and tough-minded debate. There are cases under investigation in Scotland to which I cannot refer because they are sub judice. However, they have aroused a sense of horror and repugnance among all decent-minded people throughout the land, despite the conservative reservations of lawyers. I have much respect for lawyers, despite some of the observations that I have made, but, by heavens, they form part of a conservative profession. They always offer, as the Minister has done, the classic conservative argument that the moment is not right for change, that the moment is not propitious. It is the classic argument of the conservative lawyer, irrespective of political affiliation.

New clause 2 provides for the use of screens. Again the Scottish Office is lagging behind the English. I refer to Home Office circular 61/1990, published in August 1990. The title of the circular is Use of Screens in Magistrates' Courts. That circular was sent to the clerk to the Magistrates' Courts Committee and to clerks to the justices, with a copy for the chairmen of the bench, for information. The circular has also been sent to the chief officers of police in England and to the chief probation officer. The circular says about screens: The purpose of this circular is to bring to the attention of courts a recent decision of the Court of Appeal on the use of screens in courts in cases of violence and/or sexual abuse involving child witnesses. 2. The Court of Appeal, in the case of R v X, R v Y, R v Z [1989] 'The Times' November 3 ruled that the use of screens was not unfair or prejudicial in order to prevent children from being intimidated by their surroundings. 3. Justices' clerks may also wish to be aware that the Advisory Group on Video Evidence, chaired by Judge Pigot, in its Report published in December 1989 recommended that screens should be used in proceedings in magistrates' courts in cases of violence against and/or sexual abuse of children. This would help child witnesses to bear the burdens of appearance in open court, cross-examination, face to face confrontation with the alleged perpetrator and repeated and unnecessary worry about matters which may be extremely distressing or even traumatic. If the measure is regarded as necessary for English children, why is it not necessary for Scottish children?

During the summer recess, which was not all holiday for hard-working Members of Parliament, I examined—not with an architect's eye but with a shipwright's eye—all the court rooms in the sheriff courts in Edinburgh. On some occasions I sat in on cases. I have examined all the High Court courtrooms and the courtrooms in the sheriff court in Glasgow. That court must be the most modern in Scotland. God knows what the architects were thinking when they placed the witness box in each of those courts within 12 or 15 ft of the dock.

5 pm

In those circumstances, young children may have to give evidence about members of their family—their nearest and dearest—within three or four yards of the accused. If the English can introduce screens and such a circular can be sent out by the Home Office, why cannot the Minister send a similar circular to Scottish sheriffs?

On page 19, paragraph 4.17 the Law commission report says: we expressed considerable reservations about the use of screens as a means of concealing an accused from the sight of a child who is giving evidence in court. Those reservations were based, first, on a concern that screens might not in fact be effective in reducing a child's anxiety". I recognise and reaffirm the distinctiveness of our legal system, but in this case we in Scotland have a good deal to learn from the English experience, just as they have a good deal to learn from our excellent system of children's hearings. Screens could be used in some of our courts and, given the architecture of those courts, they would provide an essential protection for children.

As I have said, I have no wish to continue with new clause 3 in the light of the Minister's comprehensive new clauses. However, although I am heartened by the Minister's new clauses, I am deeply disappointed and saddened by his obduracy about the use of screens. He is a courteous and civilised adversary in debates, but, in the light of the Home Office circular to English magistrates, I am appalled at what appears to be a contradiction between what he said in the House last night—column 1060 of Hansard—about the use of video evidence and what he has said today. I am fairly confident that it is a genuine mistake. Like many other hon. Members and many people outwith the House, he has confused closed circuit television links with video recordings. I do not think that there is any such thing as a video link. He is talking about a closed circuit television installation that allows a child to give evidence while sitting in congenial surroundings in a room adjourning the court. There cannot be a video link in those circumstances.

The video-recorded interview is a change. It has been argued for by police officers, police surgeons, social workers and the Royal Scottish Society for Prevention of Cruelty to Children. I visited the society's unit in the east end of Glasgow last week. It has a video camera with a two-way mirror. I do not know why they are called two-way mirrors because those being observed cannot see the observers. People such as Norman Dunning and Sam McTaggart of the RSSPCC should be allowed to interview a child following abuse or an assault. That interview should be used in its entirety as a production and should be admissible as evidence. The aim is to reduce the appalling distress that is inflicted upon children following such abuse.

Apparently my new clause has some technical deficiencies, but, if the Minister were to produce something along similar lines, I believe that it would lead to a significant improvement in the rehabilitation and treatment of children caught up in horrendous circumstates. Also it might persuade mothers, in some cases the fathers, or those responsible for the care and protection of children to come forward so that the alleged perpetrator may be proceeded against.

My response to the Minister is mixed. I am pleased with his new clause concerning closed circuit television, but I am deeply disappointed, indeed angered, over his obdurate response to my new clause 1. He still has a chance to change his mind about my new clause.

Mr. Dewar

There was some laughter when the Minister said that he had consulted the hon. and learned Member for Perth and Kinross (Sir N. Fairbairn) about new clause 24. There was a voice from afar, a sort of thought transference, as the hon. Member for Tayside, North (Mr. Walker) told us of the hon. and learned Gentleman's support for this proposition. It meant no disrespect to the hon. and learned Member for Perth and Kinross, but the Minister has spent all his time in Committee disagreeing with him on everything and it seems odd that he should now pray in aid his agreement as a conclusive argument.

Lord James Douglas-Hamilton

All advocates at the Bar will recognise that my hon. and learned Friend the Member for Perth and Kinross is an exceptionally experienced criminal lawyer. He has had immense experience in the courts. The hon. and learned Member for Fife, North-East (Mr. Campbell) has been his junior counsel, as have my right hon. and learned Friend the Secretary of State for Scotland and I.

Mr. Dewar

I accept that. I do not wish to spend my time discussing the hon. and learned Gentleman's views except to say that I am not surprised that he supports new clause 24. I should have thought that he would have great doubts about new clause 26, which deals with identification procedures, but I shall come to that.

This is an important announcement. It has come late in our proceedings and I regret that, because we have no opportunity for amendment. My hon. Friend the Member for Greenock and Port Glasgow (Dr. Godman) might have made more progress if this had been carried out on a different timetable. I pay tribute to my hon. Friend, who, as we know, has long been involved in this matter. He has done an enormous amount of hard work and has shown tremendous interest and commitment in the cause of helping children through the stressful and difficult occasion of having to give evidence in court. The change in views must owe something to my hon. Friend's work and efforts.

I speak perhaps from a prejudiced position. For a short period, I earned my bread and butter as a defence lawyer, practising mainly in the criminal courts. As a counterweight to that, I spent five years as a reporter to the children's panel, which might have given me a rather different perspective. I welcome the new clause on the use of television links to take the evidence of children. I hope that it will work well, because it is important to protect children in that difficult position.

We have heard much about the Scottish Law Commission report, which was published in February and is the fundamental basis of this debate. I agree with my hon. Friend the Member for Greenock and Port Glasgow about the fundamental point made in paragraph 4.8, which says that there is a range of available options from which can be selected the one which appears likely to be the most beneficial in a given case. There were three available options, and I have some sympathy with the point about the reasons why one of the three has been selected. However, the Minister's argument was not clear on that point.

The Minister should say more about pre-trial deposition, the use of screens and why it was decided not to proceed with them; there is some confusion. My hon. Friend the Member for Greenock and Port Glasgow made a strong plea on pre-trial deposition, but what he was advocating in his new clause is different from what the Law Commission advocated in its report. He kept saying that it is an excellent report and that it should be implemented, but the key to pre-trial deposition is that it is not just a recorded voluntary statement by the child but a formal examination of the child. A key factor recommended by the Law Commission was that there should be cross-examination of the child by the solicitors appearing for the Crown and defence which should take place at the latest possible date and as near to the trial date as is administratively possible. That is very different from what my hon. Friend was advocating. I do not want to enter into the details of that point because of the constraints on time, but pre-trial deposition can be interpreted in rather different ways. I sympathise with my hon. Friend the Member for Greenock and Port Glasgow about the use of screens and the Minister should say a little more about them.

It came as a surprise to me that closed circuit television was now selected for debate in this way, and I stress the word "now", because, as anyone who has the most cursory interest in this matter will recognise, it has a curious history. Paragraph 4.28 of the Law Commission's report says: In the Discussion Paper"— that was the basis of its findings—

we suggested that live closed circuit television should not be introduced in Scotland as a means of enabling child witnesses to give their evidence. Our principal reason for reaching that conclusion was that we considered that a child who was too frightened to give evidence in court was unlikely to be any less frightened if required to sit in a distant room, surrounded by a mass of cameras and screens … No doubt in view of the negative position which we ourselves had adopted at that stage, the majority of consultees simply agreed with us without making any further comment. The Law Commission came down decisively against the proposition that it then advocated in its final report because, as I understand it, it reached the conclusion in paragraph 4.31 that a closed circuit television arrangement along the lines which we have described appears likely to be helpful. Paragraph 4.29 says that English experience

has persuaded us, first, that a closed circuit television arrangement need not be obtrusive or threatening from the point of view of the child, and second, that it need not, and does not, present problems from the point of view of judges, counsel and, so far as can be ascertained, juries. It therefore reached its conclusions on the basis of English experience. I want to make a confession to the House which is probably shared by most hon. Members present: I have not seen the English experience in action. I do not know whether the Minister has done so; perhaps when he replies he will say whether he has.

5.15 pm

I do not want to found too much on this, but perhaps as a corrective and a warning I say that we shall have to monitor this practice carefully. I have seen a report of a solicitor whom I know extremely well and who has very wide knowledge of these cases. He is noted for his work in welfare law and cases involving children. He recently visited Guildford Crown court—he showed much enthusiasm in doing so—and I have the report that he wrote for the benefit of the Law Society. He says that he visited that court in a positive frame of mind. He states that he is strongly in favour of reform and Given that I approached this task in that frame of mind I was disappointed by what I saw at Guildford. The most abiding overall impression is that the use of the live television link is very obviously more conducive to an inquisitorial process and is very much out of place grafted on to adversarial proceedings. He mentions several technical difficulties that he witnessed and records the fact, in a rather legal phrase which may prejudice his testimony in some people's minds, that There is no doubt that the use of this television link system generates an aura in the court which is not conducive to a vigorous defence case. He backed that up from what he saw in that court.

That is one of the difficulties. We are trying to produce such an atmosphere, but, as was fairly acknowledged by my hon. Friend the Member for Greenock and Port Glasgow, the balance must be maintained, and it is sometimes difficult to achieve that.

I do not want to quote that report at length, because it would not be fair to do so, but it is clear that that solicitor, having seen the system in operation, took a rather different view from the Law Commission. We shall obviously have to monitor these matters carefully, although I am certain that we are right to try to strike at the problems of children giving evidence and to create an atmosphere that is fairer and will put them more at ease.

We tend to argue these matters in the context of child abuse cases, but the Government's proposal is available—I stress the word "available"—for any witness under the age of 16. It is perhaps not always true to say that it will be used for a small child who perhaps has been sexually abused by a member of the family.

My hon. Friend the Member for Greenock and Port Glasgow mentioned the excellence of the report, but he will not have forgotten that in paragraph 4.7 the Law Commission states: Any new techniques or procedures will, we anticipate, be required in a relatively small number of cases. I find that a little disappointing. If the Law Commission is right, such new techniques or procedures may not make as big an impact as perhaps some people expect.

I suspect that most of the evidence that is given by children about sexual abuse, perhaps in the home and involving members of their family, will be given not in criminal trials but in children's panel hearing proofs. Although that is not a criminal trial, and although some courts try to put the child at his or her ease, many of the inhibitions and the problems that will exist for the child giving evidence would exist for him giving evidence in a criminal charge. The effect for the child in terms of what may happen and whether he may continue to live at home is perhaps just as traumatic and drastic. We may have to consider how we run our children's hearing proofs because that may become a matter of some importance.

Does the Minister intend to accept the Scottish Law Commission's recommendation in paragraph 4.40 that guidelines should be laid down for the courts on when these television arrangements should be used? Perhaps he feels that it would be better to leave the matter entirely to the discretion of the courts. The hon. Gentleman should say something also about the Scottish Law Commission's recommendation that, if this system is used, it must be founded on an application before the trial by one of the parties to the trial, be it the Crown or the defence. Presumably, some thought has been given to that aspect. It would be useful to know whether a pre-trial application must be made and when this system will begin to operate.

The report on the Guildford Crown court proceedings referred to a child who was in a separate room with someone who knew that child—I was going to say "minder" but it sounds a little inhuman. In that case, it was the mother. The counsel who conducted the examination-in-chief and cross-examination remained in the courtroom. I gather that in Canada counsel go into the room with the child and the whole case is examined there. This is a fundamental difference in approach. I suspect that some of the difficulties on which my colleague reported in the Guildford case may have arisen from the fact that there was a preference for counsel on both sides to speak "from afar" through the television mechanism.

Dr. Godman

One can think of variations. Why not put the accused person or persons in a room adjoining the court, with links to the courtroom? One can think of a number of ways in which life can be made much easier for the child without harming the interests of the accused.

Mr. Dewar

That matter can be discussed. It is a fairly basic principle—this may sound like a lawyer's point—that an accused man or woman is entitled to be present throughout his or her trial. If that person is in another room with a television link, there might be problems. However, I take my hon. Friend's point. All these matters can be discussed.

New clause 26 will be of particular concern to many people involved in court work because it involves identification of the accused. Paragraph 3.7 of the Scottish Law Commission report states: The identification of an accused person as the perpetrator of an alleged offence is always an essential matter which the prosecution requires to establish in the course of a trial. If this is an essential matter, careful arrangements must be made to ensure that identification can be fairly tested and challenged by the defence if it wishes.

I recognise that "dock identification"—to use the Scottish Law Commission's words—has been in disfavour in England and Wales since 1914 and I recognise all its shortcomings. I have often been struck by the fact that it is not very difficult for a person to know who he is supposed to identify if the other person is sitting in the dock between two policemen. Memory may be unreliable after a period has passed and not be as sound when the trial comes around. Identification is important. I accept that in many of the cases in which this procedure may be used, involving allegations of child abuse within a family, identification may not be a big issue. But for all that, there is a much more wide-ranging power in new clause 26 and we must pay some attention to it.

The Scottish Law Commission dealt at some length with this matter and concluded that in a case where there was identification parade evidence or some other recognised identification procedure—perhaps involving a young person and identification from a group of photographs—evidence of that should be lodged as a production 14 days before the trial. The Scottish Law Commission concluded that, during the period before the trial, the defence should have the right to challenge, and if that evidence were challenged presumably identification would have to be made during the trial in a more traditional fashion. That may seem a little clumsy. Clearly, an attempt was made to ensure that there was a right of challenge.

New clause 26 states that where

the child gives evidence that he recalls having identified, prior to the trial, a person alleged to have committed an offence, the evidence of a third party as to the identification of that person by the child prior to the trial shall be admissable as evidence as to such identification. How does the defence challenge that identification? The Minister must address himself to that point. The defence can challenge the third party who is giving evidence, but the third party is not the primary person involved. Is it envisaged that, in those circumstances, the child can be cross-examined? Presumably, one would be able to cross-examine the child about the circumstances in which he made the identification.

It is important to establish exactly what is envisaged because the identification may be vital in some cases. Even in sexual abuse cases, assumptions may be made about who is responsible. In my experience, such assumptions are not always justified. Another person may have been responsible, even if the incident took place as described. We all know that identification can be shaken. I know even from my limited and lowly experience in the sheriff court that identification has been decisively shaken under cross-examination in terms of the jury's decision.

I am concerned about new clause 26. I recognise that we do not want to put undue pressure on a child, but some cases relate to charges that are peculiarly damaging to the reputation of the accused and have disastrous consequences. We must be careful to ensure that there is a right to challenge identification evidence. I am not sure whether, on the face of new clause 26, that will apply as well as the Minister would like. I hope that he will comment on that matter.

My fears may be exaggerated. For example, there may be a pre-trial application by the Crown to protect a child. The defence may say, "The essence of our defence is that my witness was not involved. There has been a mistake in identification." The court may take that information into account in deciding whether this procedure is entirely appropriate. There is a difficult balance to strike and there are unanswered questions about the identification issue.

I have taken enough time to express some of my anxieties. We are right to go down this road. I have some sympathy with the screen proposal. I feel that much more work should be done on the matter of pre-trial depositions than is possible during these truncated proceedings. I hope that what the Minister offers will protect the child, remove the threatening majesty of the system, allow the child to speak more freely and in a more relaxed fashion and allow the court to get the truth with more certainty, which is the point of the exercise. It is difficult to strike a balance, but I am happy with the idea that we should introduce these provisions, that we should monitor them carefully and that we should learn from experience and consider what further steps are necessary.

Mr. Menzies Campbell

I have grave reservations about these provisions. Those reservations are in no sense ameliorated by the fact that we are discussing these matters against the background of a time restraint. What we are discussing represents a substantial innovation in criminal procedure and the law of evidence in Scotland.

The hon. Member for Greenock and Port Glasgow (Dr. Godman) spoke with great sincerity and on the basis of considerable analysis and work. I hope that the hon. Gentleman will not think that my reaction is the automatic reaction that one might expect from someone involved in the law.

I do not claim to have the experience of defending in the criminal courts that the hon. and learned Member for Perth and Kinross (Sir N. Fairbairn) has, but I have had the advantage of prosecuting and defending and I suspect that that may entitle me to claim a rather more rounded view of the difficulties to which the new clauses may give rise. The hon. Member for Glasgow Garscadden (Mr. Dewar) has referred to some of those difficulties already. But it is also important to realise that new clause 24 applies not simply to cases involving assaults on children, as its language makes plain. It says that the court will have the power available to it where a child has been cited to give evidence in a trial". That means any trial.

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There may well be cases in which it is not the prosecution but the defence that seeks to take advantage of the new clause. The defence may judge it in the interests of the accused to create the kind of artificiality to which we shall undoubtedly be subjected if the child is in another room while the proceedings of the court are taking place in the courtroom.

One important issue has not been addressed so far. The accused person is not represented by counsel or solicitors in every case; he may choose to represent himself. In such cases, the court is slow to allow anything to happen that may be prejudicial to the accused by reason of the fact that he or she is not legally represented. It has been suggested that we might follow the Canadian model and have counsel or solicitors in the same room as the child witness. The whole purpose of the new clause would be defeated if the accused was representing himself and went with the prosecutor to the room where the child was being kept. The proposal is by no means straightforward.

Moreover, one should not underestimate the difficulties for the prosecutor if the child is to be kept in a room away from the court. Often a stage is reached in a child' evidence at which, for a whole variety of reasons—some of which have been canvassed—the child becomes reluctant to continue and needs to be prompted. Those who have prosecuted in cases that involve children giving evidence know that there are certain devices that one can use. One may adopt a slightly different tone. Within the bounds of proper questions, and not transgressing by the use of leading questions, one may remind the child of some factor that may persuade him to remember his evidence. We should not discount, or be unaware of, the difficulties that may be caused to both prosecution and defence in the ordinary conduct of criminal proceedings if those proceedings are conducted in accordance with the new clause.

The new clause lists a number of factors that the court must take into account in considering whether to allow such an application. Absent from that list of factors is something that is an essential feature of all criminal proceedings—fairness to the accused. As the hon. Member for Greenock and Port Glasgow said, the purpose of this innovation is to prevent children from having to suffer the additional traumatic effects of having to give evidence about extremely unpleasant events in which they may have been involved. But however laudable and desirable that purpose may be, it must always he subordinate to our overriding purpose, which is to convict the guilty and to ensure that the innocent are not convicted. The absence of any reference to fairness to the accused in the critieria set out in the new clause is certainly worthy of note and, in my view, gives rise to some concern.

Like the hon. Member for Garscadden, I am especially apprehensive about the effect of new clause 26. I intervened in the Minister's opening remarks to say so, and you, Mr. Deputy Speaker, had to chide me for the length of my intervention. It was only a reflection of my concern.

Suppose that, on a previous occasion, a child has identified someone who is subsequently charged and who is an accused person in criminal proceedings. It would appear that, however informal the circumstances were, and whatever the nature of the relationship between the child and the person to whom the identification was made, it would be open to that person to come to the court and say that that identification was made.

Those of us who have participated in criminal trials involving children know that there is the constant fear of coaching. Such an identification may well have been made in response to a series of leading questions—to questions of an interrogatory nature and questions that might contain some threat or inducement. Nevertheless, the identification would become admissible in evidence. Moreover, under new clause 26, the fact of the identification having been made would still be a matter on which the child, and the person to whom it was made, could be cross-examined.

No doubt the Minister has given careful consideration to the cases of Muldoon v. Her Majesty's Advocate and Bennett v. Her Majesty's Advocate and will know the extent to which the High Court of Justiciary has departed from the apparently inflexible rule that identification could be carried out only in the presence of the accused in the course of the proceedings. But I wonder whether careful consideration was given to the effect that this new clause, which is designed to protect children, would have and to the extent to which it may innovate in respect of the principle of fairness to the accused person.

Sir Nicholas Fairbairn (Perth and Kinross)

I apologise for not having been here throughout the debate.

I support new clause 24 because I think that it represents the best way of not putting odium upon an accused person. The protection of the accused lies in the fact that there must be an application to justify. It is not a matter automatic; the procedure must be justified by application to the court. That is most important.

I should also like to bring to the attention of the hon. and learned Member for Fife, North-East (Mr. Campbell) something that I did not know until last week. Apparently, in England, an identification in court—which I have always thought pretty suspect—is not valid.

Mr. Campbell

On the latter point, I have never known the hon. and learned Gentleman to be anxious to import into the procedure of the law of Scotland things that take place in England. At the centre of our criminal procedure has been the fact that identification must be live identification, although that was watered down to some extent by the views expressed by the court in the case of Muldoon v. Her Majesty's Advocate.

In respect of new clause 26, I have tried to illustrate the kind of difficulties that may arise when one embarks on an innovation in the established procedures. The motivation behind such innovations may be of the best but they may raise important and significant issues of principle none the less. I understand that, as the hon. and learned Gentleman said, any application under new clause 24 can be granted only by a court if an application is made to it. The language of the new clause states "on cause shown". I understand that, but, as I said before the hon. and learned Gentleman joined us in the Chamber, fairness to the accused must stand at the centre of our criminal proceedings. My concern is that the absence of an express reference to that among the factors that the court must take into account is a serious omission.

The mood of the House, the country and those who are concerned with these matters is that something should be done to try to assist the giving of evidence by children. It would be churlish and small-minded to try to stand out against that. However, as the hon. Member for Garscadden seemed to imply, I believe that we are embarking upon a substantial innovation that may well give rise to difficulties of which we have not yet conceived in the short time available for our debates.

In those circumstances, there is a substantial obligation on the Minister to give an undertaking that there will be the most careful monitoring of what takes place. On the issues of identification and the effective representation of an accused person, we need an undertaking that those matters will be examined with great care to ensure that no prejudice arises. It would be most unfortunate if, in our anxiety to do well by children, either through inadvertence or omission, we created circumstances that caused great unfairness to accused persons.

As has been said many times, it is a question of balance. I am prepared to take a bet on the balance being established by these provisions. None the less, I feel it important to enter these reservations and to urge the Minister to ensure that this innovation in our law does not pass unmonitored and that its effects are properly taken into account and understood.

Mrs. Margaret Ewing

I intend to be brief, Mr. Deputy Speaker. I wish first to congratulate the hon. Member for Greenock and Port Glasgow (Dr. Godman) on his assiduous work over a considerable period, which has brought this matter eventually to the Floor of the House. It is a pity that we did not have an opportunity to explore this issue in more detail in Committee, because this is a significant innovation. I share the hon. Gentleman's concern because I, too, do not belive that the provisions go far enough. I share his disappointment that pre-trial video depositions are not to be introduced because that would have been a major step forward.

I listened with great interest to the hon. and learned Member for Fife, North-East (Mr. Campbell). I found it difficult to understand many of his technical legal arguments. He seemed extremely pessimistic about the venture upon which our legal system is now embarking. We have a responsibility to take such steps forward. My background is in social work training. Anyone who has read case studies of children who have been physically or sexually abused knows the trauma through which those children have lived and which they are asked to relive time and time again when asked to give evidence.

This week, many people have been thinking about the horrendous case of the 11-year-old girl who was raped in a ward at St. Helier hospital. We must think of the trauma that that girl and her family have undergone. In similar circumstances in Scotland, we would want to ensure that that child and her family would be spared as many difficulties as possible when bringing the accused to justice and to ensure that it never happens again.

From a humanitarian point of view, the provisions are a step forward for children in our society. I not only wish the new clause every success, but hope that its provisions will be extended to take account of the other points raised not only by the hon. Member for Greenock and Port Glasgow, but also by the Scottish Law Commission.

The Minister said that television circuits would be introduced first in Edinburgh and Glasgow. When will that happen? The hon. Gentleman also mentioned monitoring. How long does he envisage the monitoring period lasting? Will it be for a short period or for two or three years? I should like to know how long it will be until a final decision is taken. We should also like to know who will decide whether the experiment has been a success, and the criteria for deciding whether it is a success or a failure.

I know that the Minister will respond positively—I can tell by the look on his face that he intends to refer to these important points. Many people in Scotland are waiting to hear the exact details of his proposals.

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Mrs. Maria Fyfe (Glasgow, Maryhill)

I begin by congratulating my hon. Friend the Member for Greenock and Port Glasgow (Dr. Godman), without whom I am sure that the House would not be discussing these issues. I also want to put on record my great condemnation of the fact that this House saw fit to discuss such relative trivialities as the conduct of the financial affairs of charities for many days in Committee, and yet something as important as this issue has been pushed in at the tail end of our consideration. That is a deplorable sense of proportion. I hope that, when the House is considering a future Scottish law reform Bill, it will give such issues far greater prominence.

I agree with my hon. Friend the Member for Greenock and Port Glasgow that screens could be an important and valuable part of setting a child at ease, reassuring him or her, and making it possible for the child to feel less fear. I hope that we shall see some progress on that in the future.

On the issue of the stage at which a child should be interviewed, I accept that both prosecution and defence must cross-examine the child in the interests of justice. However, I do not understand why anyone should think that that cross-examination should invariably take place as near as possible to the date of the trial. I should have thought that, in most cases, the nearer the date of the interview, carried out by both sides, to the events being complained about, the better. Obviously, when the child already knows the person or persons who are accused, recognition of those individuals is irrelevant. However, when the accused persons are not known to the child, it is clear that the sooner the proceedings take place after the event the more likely it is that the child will properly be able to recall events and to recognise those concerned.

I was once a witness to a crime and reported the person to the police as having long, greasy red hair, of slim build and about 5 ft. 6 in. tall, but if that person had turned up in court a year later with his hair cut and washed and wearing different clothes, I might not have recognised him if he had not been standing in the dock. It is nonsense to expect a child—possibly a young child—to have clear recall many months after an event.

I turn now to the claim that children never tell lies. They are not capable of telling lies involving events that are outside their experience. A child cannot invent something which he or she has never encountered, because a child could not recognise such things. Children do not invent things that they could have learnt about only from pornographic magazines, for example, if they have never set eyes on them. That means that children are likely to be telling the truth. In the Cleveland controversy, in their anxiety to protect persons from unjust accusations, some people were far too prone to go around saying that children generally tell lies about such events. For the reasons that I have explained, I do not believe that.

Although I accept that, in justice to the accused person, the questioning must be partly adversarial, it should be carried out in such a way as to ensure that it is a seeking out of the truth. The adversarial aspect of a normal trial might rattle and unsettle a child and cause him to keep silent. That is to be deplored and it must be avoided.

Not enough account has been taken of the fact that it is not only the court that might intimidate a child. A child witness in a high court or a sheriff court might have to travel a long way to take part in a trial and might have to stay overnight in an unfamiliar setting. He might have to have breakfast in an hotel dining room and sleep in a strange bed—all that can be unsettling, as any parent will know. Since little can be done about these unsettling events, it is all the more important to try to create as much of an atmosphere of confidence as possible for the child.

I was interested to receive in my mail this week—most hon. Members must have received it too—a newsletter from the Scottish Child Law Centre. It contains an inquiry page on which a social worker dealing with a number of abused children who would be appearing in court to testify had asked the writers of the publication what could be done to ease the position of such children. We have already heard about a memorandum that came out in the summer describing some improvements which have already been made, such as people no longer wearing wigs and gowns, but I think that the advice given to the social worker shows that there is a long way to go yet. It was that preparation can sometimes be difficult because of lack of consistency in approaches by judges to the protection of child witnesses". Such inconsistences must be reduced as much as humanly possible. It should not be left to a judge to decide how he or she should approach the protection of child witnesses. I hope for some code of practice on such matters.

The same publication goes on to refer to a Crown office leaflet entitled "Going to Court", which can be helpful, and to a leaflet which is apparently used for children in English courts, entitled "Susie and the Wise Hedgehog go to Court". It seems that that could be used to some extent in Scotland, and such publications should be used for the benefit of young children. In rarefied debates such as this, we often forget about the language in which young children think.

All these aspects must be examined much more thoroughly than is possible in these circumstances. The fact that so many judges are elderly and upper class shows the chasm between them and children who may speak broadest Glaswegian. They may not be able to communicate with each other at all.

I agree with other hon. Members that these measures must be carefully monitored. I hope that, next time we discuss Scottish law reform, we shall draw up a comprehensive programme on how to deal with children in Scottish courts and make it an important part of future Scottish legal legislation, instead of treating the subject at the tail end of a Bill as if children hardly mattered.

Lord James Douglas-Hamilton

This has been an important debate in which the need increased protection of children has been accepted.

The hon. and learned Member for Fife, North-East (Mr. Campbell) asked whether television links were novel. They are not; they are already used in England and Wales, and we shall monitor them carefully.

All courts will be directed in matters concerning fairness to the accused and the interests of justice in all criminal proceedings, so these aspects do not need to be expressly provided for.

I agree about the importance of identification, which the hon. and learned Gentleman and the hon. Member for Glasgow, Garscadden (Mr. Dewar) mentioned. At pre-trial identification, the accused will have the right to be represented, but if his representative wishes to challenge the identification at the trial he is free to do so, and if necessary to examine the child on the identification procedures.

Informal identification is admissible, and the court can take that evidence into consideration, but it is not required to believe it or to decide the case in accordance with it. The court must weigh the evidence.

I have not seen the television rules in operation in England, but my Scottish Office officials certainly have. We shall draw on their assessment and make certain that the procedures and equipment operate effectively in Scotland. The Guildford courts use voice-activated television rather than fixed television, and that confirms the need for careful monitoring.

I was asked whether the procedures would be applied to proof before a children's hearing. The answer is, not at this stage. We have decided that it is appropriate in the first instance to introduce the live television link procedure for child witnesses in criminal trials, but we shall have to monitor that closely, too.

There are views that screens do not operate effectively to reduce a child's anxiety, so the Government want to proceed initially relying on the Lord Justice General's memorandum and advice to judges, and also on live video links. Screens can be used at present with the consent of the accused and the defence.

Evidence on commission is a judicial deposition. There may be difficulties in taking the child's evidence in parts. We think it better in the meantime to take all the evidence at the trial, if necessary using television links.

Subject to consultation with the judiciary, the starting date in Edinburgh and Glasgow will be 1991; and thereafter, following monitoring, throughout Scotland.

The hon. Member for Garscadden asked about regulation. It can be done by Act of Adjournal as appropriate.

I was asked whether counsel would be in a court room or in a side room with a child. Counsel would remain in the court room. The television link would provide the link between the court room and the adjacent room where the child was.

I was asked about the Home Office circular which follows an English appeal about the use of screens in English courts. In Scotland, screens have been used successfully with the consent of the accused.

New clause 24 provides for the court to determine whether these circumstances are appropriate to the use of these special procedures. Before the court reaches a decision, it will have to consider an application from one of the parties, and it will be open to the other party to seek to oppose the application if he or she so wishes. If the application is granted and one of the parties subsequently considers that the trial was not fair, it would be open to that party to lodge an appeal.

This is a major step, and I think that we are right to take it, but we are also correct to proceed cautiously, because we must consider not only the protection of the child but also fairness to the accused.

Question put and agreed to.

Clause read a Second time, and added to the Bill.

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