HC Deb 16 December 1992 vol 216 cc460-6

?.—()(1) Section 34 of this Act shall apply in relation to a person aged 16 years or more as it applies in relation to a child if application is made to the court in that regard.

(2) An application under subsection (1) above shall be granted only if the judge taking into account the age of the person and the physical condition and mental capacity of the person is satisfied that the granting of the application—

  1. (a) is in the interest of justice; and
  2. (b) in the case of an application by the prosecutor is not unfair to the accused.'.—[Mr. McFall.]

Brought up, and Read the First time.

Mr. McFall

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

The new clause concerns the concealment by a screen of the accused from persons aged 16 years or more giving evidence. We debated the issue in Committee and had a fruitful debate on clauses 32 to 44, with a positive outcome.

The reason for tabling the new clause is to highlight the inconsistency between statutory provisions for children aged 16 and under and non-statutory provisions for adults with a mature chronological, but young mental, age. Adults in that category will not have the same provision as children, and that could result in a lack of cohesion in judicial decisions and perhaps to idiosyncratic decisions, since there will be no legislative standard to judge by.

The Law Commission recommended screens for other vulnerable witnesses. The new clause seeks to bring clarity and consistency to the approach to vulnerable witnesses, whether or not they are below the age of 16. We welcome the provisions for those under 16, but nothing exists for people over that age. If the Government can accept the Law Commission's report and recommendations for children, why can they not accept them for other vulnerable witnesses, such as people with a mature chronological but a young mental age? They suffer the same problems as young children, so the same statutory arrangements should be available for such vulnerable witnesses. The new clause is therefore moved with that in mind.

Dr. Godman

I am happy to support the new clause. The use of a screen in a courtroom is, at best, a crude protection device. It separates a child witness from the person charged with an offence. If children can be protected by such measures, other people whom I regard as equally vulnerable should be given similar help. Without wishing to cause any trouble to the Chair, I want the provision to be extended to clause 33 of the Bill where vulnerable persons are concerned, but the new clause refers to clause 34 and the use of screens.

My hon. Friend the Member for Dumbarton (Mr. McFall) mentioned people who may be chronologically mature but mentally incapacitated. These days, the phrase that we are urged to use is "persons with learning difficulties". I tend to use the old-fashioned phrase and refer to them as people who are mentally handicapped. They are vulnerable and should be given every possible protection when they are called upon to give evidence in our courts.

I am not sure whether the wording of the new clause would allow it, but the same holds true for women complainers in cases involving violent physical or sexual assault. Given that screens have already been used and are in common use—that is what I was told when I visited the sheriff court in Glasgow—has the Minister any evidence of screens being used in rape cases? Do those assisting a complainer in such a case have the right to seek guidance from a judge on the use of screens?

As I said earlier, a woman involved in a rape case is often in an extremely vulnerable state of mind. Such a complainant deserves every protection. That is why I advocate the use of closed circuit television in such cases.

Concealment by way of a screen is at best a poor measure. I think that the Minister said in Committee that the accused person must have sight of the witness when screens are used. I believe that a television monitor will be used, although it can be done by a one-way or two-way mirror, or whatever it is called. That is a reasonable measure, but we should go further and extend the provision to all vulnerable persons.

This is a stage on the way towards offering greater protection to vulnerable witnesses, especially the complainers in rape cases. It is disgraceful that they should have to suffer defence counsel trawling their sexual histories; the least that they deserve is the use of a screen to hide the perpetrator of a violent assault from them.

The new clause is a means of giving greater protection to people aged 16 or more when they give evidence, but much more needs to be done and I shall return to the matter.

Mr. George Foulkes (Carrick, Cumnock and Doon Valley)

As you know, Mr. Deputy Speaker, it is unusual for me to participate in these debates. I used to do so in the last decade—I was about to say last century, but it is only a decade although it feels like a century.

Mr. McFall

It looks like it.

Mr. Foulkes

I am grateful to my hon. Friend. I was about to congratulate him on moving the new clause, with which I thoroughly agree.

The new clause is very good and the purpose behind it exceptionally good, but it could be negated if people come into contact elsewhere in the sheriff court. They may be screened in the court, but if they happen to bump into each other in the waiting rooms, corridors or anywhere else, the effects of the new clause will be negated. The facilities at sheriff courts are absolutely appalling—especially at the court in Ayr—for people waiting to give evidence and for those accompanying them. There are no arrangements for refreshments and the toilet facilities are dreadful. Witnesses can come into contact with each other and with the accused. All of that is contrary to the effective administration of justice. The excellent new clause would be totally negated by people casually bumping into each other in sheriff courts which have such appalling facilities.

I have had many complaints from witnesses who have been treated appallingly at sheriff courts, particularly Ayr sheriff court, and the same applies elsewhere. Witnesses are often nervous. They may be reluctant to attend and have to be persuaded and encouraged. They need good facilities so as to be assured that they will not bump into people against whom they are about to give evidence.

5.30 pm
Dr. Godman

Has my hon. Friend been told by the Scottish Courts Administration whether his local sheriff court is to be renovated in the near future?

Mr. Foulkes

No, I have not. That is part of the problem. The Minister may be able to tell me. I have a great respect for the Minister. He and I have often crossed swords on other occasions in other places, both at university and on the town council. I am sure that he will give a positive and helpful reply to today's debate, particularly to the point that I have raised. It is important.

I know that there is a programme for improving, upgrading and updating court houses throughout Scotland, but progress is too slow and many sheriff court houses are completely inadequate for their purpose. If witnesses are not to be intimidated and if they are to come forward willingly, they must have good facilities and know that they are not likely casually to bump into people against whom they may be giving evidence. I may be widening the scope of the amendment, but the point is relevant. I hope that the Minister will deal with it.

Mr. Menzies Campbell

The hon. Member for Carrick, Cumnock and Doon Valley (Mr. Foulkes) showed rare ingenuity in introducing the nature of the facilities at the Ayr sheriff court, and you, Mr. Deputy Speaker, showed your customary tolerance in allowing him to expand upon the matter. I hope that I will be allowed to take advantage of that.

I recently visited the temporary sheriff court in Greenock, within the curtilage of what used to be the Scott Lithgow shipyard. I say without equivocation that the facilities there are a disgrace. I appreciate that the original sheriff court building in Greenock is undergoing a substantial upgrading programme, but to expect justice to be conducted in the circumstances in which it is sought to conduct it in Greenock at the moment is not good enough. I fear, as the hon. Member for Carrick, Cumnock and Doon Valley made clear, that similar situations are to be found throughout the country.

I doubt whether the hon. Gentleman has ever been to Lochmaddy, but its sheriff court—I see that at least one other hon. Member knows where that court is situated —is wholly inadequate. As the hon. Gentleman properly says, such facilities negate any advantage that might stem either from the new clause or from the legislation in respect of which the new clause is a supplement. Albeit in a roundabout way, there is considerable relevance in what the hon. Gentleman says.

I have always had considerable reservations about the notion that—I put it colloquially, for which I hope I shall be forgiven—one should start by moving the furniture around in the court. We come back to the principle that justice should not only be done but should be seen to be done. Our courts are public places which people are entitled to visit.

Now that we have accepted the principle that those who are vulnerable by way of age should be given special protection, what conceivable reason is there for not extending it to others who are equally vulnerable, either by reason of age, physical condition or mental capacity.

Therefore, although I do not share the hon. Gentleman's optimism, I hope that we shall have a positive response from the Government, and that even if they are not willing to accept the new clause they will give it serious consideration. Once the principle is ceded, it is difficult to say that others who can be identified as vulnerable should not be entitled to precisely the same protection.

Dr. Godman

When discussing measures which sought to give added protection to vulnerable witnesses in Committee, my hon. Friends and I stressed at all times that in no way did we wish to harm the interests of the accused person.

Mr. Campbell

I understand that. To some extent I must accept that I have lost the argument, but I am now concerned to argue for consistency. The Government have accepted that anyone deemed vulnerable by reason of age should be entitled to protection. If it can be demonstrated that a person is vulnerable by reason of other incapacity, such a person should be entitled to precisely the same protection.

The logic of that is ineluctable and the Minister should accept it, if not within the four corners of the Bill, on some other occasion when the matter is before the House when we may even feel compelled to push the matter to a vote.

Lord James Douglas-Hamilton

The hon. Member for Dumbarton (Mr. McFall) referred to the Scottish Law Commission's proposals. The Scottish Law Commission recognised that the use of a screen would not always be appropriate. In the case of an adult witness, the protection afforded by the use of video recorder evidence will be available. It will be open to the prosecution or the defence to apply for the use of screens and the court will always consider such a request with the interests of the witness in mind.

The hon. Member for Carrick, Cumnock and Doon Valley (Mr. Foulkes) is not slow to take any opportunity to further the interests of his constituents. There has been a substantial programme of upgrading and rebuilding sheriff courts and particular attention has been given to the need to provide comfortable and sympathetic accommodation for witnesses. The hon. Gentleman makes his point well. I shall make inquiries about the particular position of the sheriff courts at Ayr and Greenock, and I shall write to those hon. Members who have expressed an interest.

Dr. Godman

Will it be possible to use such screens in the temporary sheriff court at Greenock? I am not a lawyer, but that temporary building is a disgrace. I look forward to the day when the original sheriff court will be restored so that cases can be heard there once again.

Lord James Douglas-Hamilton

Yes. As I said, I shall write to the hon. Members about the sheriff courts that they have mentioned.

Mr. Menzies Campbell

I am grateful to the Minister for giving way with his characteristic courtesy. Will he give some consideration to the need to take great care in finding suitable and adequate temporary facilities when a sheriff court is refurbished. I appreciate that there may be geographical constraints. The hon. Member for Greenock and Port Glasgow (Dr. Godman) asked whether screens could be used in the temporary court facilities at Greenock. I do not believe they could, because the space there is inadequate. When a temporary court is being established, careful consideration must be given to ensuring that it is adequate for the purpose.

Lord James Douglas-Hamilton

The hon. Gentleman's point is well made. He made an eloquent plea for consistency in the matter; I certainly agree with the principle and have some sympathy for the new clause. However, the amendment would extend the new evidential provisions to witnesses other than children and, as I said when the matter was discussed in Committee, the Government must be satisfied that the provisions for one category of vulnerable witnesses are working well before we can consider extending them to other categories of witnesses.

I repeat what I said to the hon. Member for Dumbarton (Mr. McFall)—that a decision to extend any of the provisions that we have introduced for children would be premature until we have been able to evaluate how the provisions are working in practice. I stress the importance of ensuring that any special evidential provisions that are introduced to meet the needs of particular categories of witness are appropriate to their needs. As hon. Members are aware, evidence can currently be taken on commission.

Hon. Members who were present at the full debate on the matter in Committee will recall that I said that there were other means available for hearing evidence by those who may not be able to attend the courts. In the Government's view those arrangements are sufficient to meet the real concerns of such witnesses. When we have sufficient evidence, we shall assess it and make the necessary proposals.

Mrs. Fyfe

I well recall the Minister's comments on the matter in Committee. We still disagree with him. Surely he does not need to wait for the results of practice with children in courts before he feels able to act for adults over the age of 16 who are perhaps suffering from mental handicap. The two categories are completely separate and because the system works or does not work well with children would prove absolutely nothing about people over the age of 16 who suffer from mental handicap. Will the Minister revise his view on that and accept the advice of those who are accustomed to working with people suffering from such difficulties?

Lord James Douglas-Hamilton

The difficulty is that at present there is no hard evidence that the extension of screening to witnesses other than children would be the best way to minimise the possible distress caused to such witnesses by having to attend court. It is also important to remember the need to achieve a balance between the needs of witnesses and fairness to the accused. However, I am certain that we shall return to the subject when we have evidence, at which time it will be much easier to see a constructive way forward.

Mr. McFall

We are still unhappy at the Government's reply. Ministers say that they will have to wait to see how things work out before deciding. I refer the Minister to the proceedings in Committee. I asked about the issue of unit fines, and the Minister said:

we must be certain that the system is operating successfully in England and Wales."—[Official Report, First Scottish Standing Committee, 3 November 1992; c. 53.]. I did a little detective work and looked at the first draft of the Law Reform (Miscellaneous Provisions) (Scotland) Bill which entered the Lords in July 1991. Clause 41 of that Bill states that the system being introduced would enable the Secretary of State to order that specific courts should operate a unit fines system. However, in his reply to me on 3 November this year, the Minister was not aware that his Government were trying to introduce that very system in that 1991 Bill. That is a precedent, and the Minister will understand our caution and suspicion at being told that we shall have to wait to see how things work out.

Recommendations Nos. 23 and 24 in report No. 125 of the Scottish Law Commission are unequivocal in their description of vulnerable witnesses. That definition is easy to interpret, because it includes the elderly, the infirm, the sick or the mentally ill". We do not intend to press the clause to a vote but we urge the Government to bring matters into line so that there is consistency between those under 16 years and those who are over that age.

Perhaps I can be partisan in the fashion of other hon. Members. The conditions in Dumbartonshire sheriff court are not good and I have been pushing the Minister to make a decision on the matter. Will he write to me before Christmas so that I can give my constituents the good Christmas message that we can look forward to a new court in Dumbarton with new and spacious architectural arrangements which will enable the provision of justice to be exemplary?

Lord James Douglas-Hamilton

I shall certainly write to the hon. Gentleman about Dumbarton sheriff court, but at this stage I cannot give a guarantee about the answer. The new clause is premature because the research project began in October 1991 and since that time the live television link has been used in only eight cases. It is too early to reach conclusions about the effectiveness of the procedure and to take final decisions on extending provisions which will be available for child witnesses who are especially vulnerable.

Question put and negatived.

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