New clause

HC Deb 19 October 1994 vol 248 cc335-42

Child testimony

Lords amendment: No. 43, after clause 45, to insert the following new clause—Video recordings of testimony from child witnesses— In section 32A of the Criminal Justice Act 1988 in section 32A(5)(b) the word "adequately" shall be inserted after the words "dealt with".")

Read a Second time.

7.15 pm

Mrs. Llin Golding (Newcastle-under-Lyme)

I beg to move amendment (a) to the Lords amendment, in line 3, leave out from 'section 32A(5)(b)' to the end of line 4 and insert— 'the words ", in the opinion of the court, has been dealt with in his recorded testimony" shall be omitted and the words "has been dealt with in his recorded testimony unless the judge grants leave, such leave to be granted only where he is of the opinion that an examination in chief is necessary to clarify matters not adequately dealt with in the witness's recorded testimony, or that an examination in chief would be in the best interests of the child" shall be inserted in their place.'.

In moving the amendment, which deals with the video recording of the testimony of child witnesses, I wish to thank the NSPCC, of which I am a trustee, for doing most of the work in researching the need for such an amendment.

Section 54 of the Criminal Justice Act 1991 added a new section 32A to the Criminal Justice Act 1988 after section 32, which deals with the giving of evidence through television links. Section 32A(5) has been amended by the other place during the passage of the Bill by the insertion of the word "adequately", so that it now reads: Where a video recording of the testimony from a child witness is admitted in evidence, the child witness shall be called by the party who tendered it in evidence and that the witness shall not be examined in chief on any matter which in the opinion of the court has been dealt with adequately in the recorded testimony.

The original purpose of the provision when it was inserted into the 1991 Act was to protect the child witness from having to give an oral examination in chief which would then be scrutinised and compared with the recorded testimony, leading to cross-examination of the child on trivial differences between the oral and recorded testimony. The legislation prevented an oral examination in chief and there would, therefore, be no second telling of the child's story which could be microscopically compared with the video recording.

The addition of the word "adequately" has dealt with one previous difficulty with the legislation as it stood. As a result, where a taped interview is flawed because issues have not been properly brought out, or because some issues have been missed out altogether, the prosecutor can now seek to clarify those matters so that relevant evidence is no longer prevented from coming before the court. However, the provision still prevents the prosecution from refreshing the child's memory or giving the child witness an opportunity to warm up before cross-examination through a succinct examination in chief.

The only alternative is for the child to view the taped interview. For a young child to watch a long interview on video is, at best, a tedious experience; at worst, the child may refuse to watch it. The child witness, therefore, faces a hostile cross-examination which leaves him thinking that the whole process is pointless as no one believes him. The amendment would allow a judge to grant leave, having regard only to the welfare of the child, for the child to be examined in chief, even though matters have been adequately dealt with in the recorded testimony.

The NSPCC tells me that six judges support reforms of the legislation. Mr. Justice Kay wrote to the Home Secretary on 6 July 1994 about a trial in Swansea involving a paedophile ring. His letter states: My concern as to Section 32A(5) is limited to the effect that it had on the children. The procedure meant that the child saw me briefly on their monitor at the start of each session and thereafter they saw counsel for the defence who was cross-examining, but no-one else. Under the Act, since it was not suggested by the prosecution that matters had not been dealt with either adequately or at all in the video, I had no power to allow any questions by the prosecution before this process began. The children were thus confronted for days at a time by hostile counsel putting questions to them, as they were obliged to do on their instructions, that almost every word they uttered was untrue. They saw no other person in court and had no opportunity to see that there were others present who did not share the views apparently being expressed in the court. As the process continued, the children became more and more frustrated. Some declined to answer questions making it clear that they saw no point in doing so if everyone doubted every word they said. I am sure that a number of lessons need to be learned from the Swansea trial. One that seems to me obvious is that the children would have found the giving of evidence far less of an ordeal if before they were subjected to cross-examination they had had the opportunity to answer a few questions from prosecuting counsel who would have appeared to them to be accepting their answers and not challenging them. I am totally against any idea that the prosecution should be given a free range to ask questions in addition to the video and that the time a child spends in the witness box should in any way be prolonged. I am equally firmly convinced that some questions from a friendly counsel would be beneficial to the child in many cases. I urge that further consideration be given to this aspect of the matter and that the experience of those witnessing the consequences for children of this provision should be drawn upon.

There can be no doubt that a court process that intimidates children carries the risk that relevant evidence will not come before the court. The amendment has the safeguard of judicial discretion to ensure that it will be used only in a small number of cases in which the child's welfare calls for it. I cannot pretend that the amendment will solve the problems that confront children in giving evidence in court.

I strongly support Lords amendment No. 43, but I and many other people believe that the further amendment will help to relieve the strain on children and to prevent even the strongest case of abuse collapsing in the courts.

Mr. Jonathan Evans (Brecon and Radnor)

I wish to add my anxieties to those that have been expressed by the hon. Member for Newcastle-under-Lyme (Mrs. Golding). I declare an interest as an honourary consultant to the National Society for the Prevention of Cruelty to Children on law and policy matters.

The Minister knows that I introduced an amendment, couched in not dissimilar terms, in Committee. I recall his remarks at that time, but I think that he and the Government have been overtaken by events. The Government were then asking for clear evidence that the operation of section 32 was causing the difficulties to which the hon. Lady has referred.

The NSPCC provided that evidence. Evidence has been provided by judges, who communicated with Members of the House of Lords. Additionally, the powerful and, in my view, exceptional letter was written by Mr. Justice Kay following the case in Swansea. In my experience, it is extraordinary for the Home Secretary to have received such a detailed letter, outlining the anxieties of a judge about the operation of that section.

It is important to understand what the judge was complaining about. He was dealing with a situation in which a child was giving evidence by way of the video link. Therefore, the only person whom the child saw throughout the time of giving evidence—let us remember that one of the children gave evidence for a full week—was the defending counsel, who challenged every word that the child said. The judge argued that a more balanced view would have been given in the interests of the child if a discretion had been available to the judge along the lines that the hon. Lady proposes in amendment (a).

When I mentioned the matter in Committee, the Government's view was that there was not really a problem. It has now been made clear that, in many instances, children suffer as a result of the interpretation of that section. We have the evidence of that not simply from the NSPCC, which is active in that sector, but from judges.

I well recognise that the Government would wish to have properly researched information on which to act, but the Government must on occasions respond to the requests of the judiciary, based on their practical difficulties in operating that enactment. There is not a jot of difference between the intentions of the Government and those of the Opposition in relation to the matter. Surely everyone in the House wants the courts to be as user-friendly for children as possible. That is the reason why the original enactment was passed.

I express my anxieties to my hon. Friend the Minister, and ask whether he will give close attention to the observations that have been made by members of the judiciary, especially in the exceptional letter from Mr. Justice Kay, following his practical experience of the paedophile case in Swansea.

Mr. Beith

Is added my name to amendment (a) because I share the worries that have been expressed, especially in the light of two cases that have occurred in the north-east and the many others throughout the country.

Many parents are worried that when their children have been the subject of abuse—that is not in doubt in the type of case to which I am referring—their evidence is not heard by the court. The secondary consequence is that accused persons may be unable to demonstrate or prove their innocence or be found innocent by the court. Therefore, many parties remain aggrieved at the end of abortive trials and investigations in cases of that type. Unless we can find a satisfactory basis on which children's evidence can be admitted and appropriately considered by the court in cases where there may be, in the nature of the event, a lack of other corroborative evidence, we shall spread that sense of injustice.

The greatest fear is that it will become impossible to bring people to trial for the sexual molestation of young children as long as they can ensure that the event takes place where there is no witness. That is a very worrying state of affairs, which has certainly given anxiety to parents in my constituency and elsewhere.

The issues have been given focus by a case that took place in the Newcastle upon Tyne Crown court: Regina v. Lillie and Reed, and the judgment of Mr. Justice Holland in that case. It is worth giving the House at least a flavour of what led the judge in that case to feel that the children's evidence was inadmissible. The judge spent a long time looking at the video recordings and made many comments on the reasons why he did not feel able to allow the jury to see those video recordings and treat them as evidence. The very length of the recordings, together with the marked variations in her story, reflect exactly what one would expect of a 4 year old, namely, an inability to give an intelligible account of events, certainly of those events that are relevant to these proceedings. That incapacity, I emphasise, was no reflection whatsoever upon

the child, merely a reflection of her age, of the subject matter, of its emotional impact on her and, perhaps above all, of the delay between the events under investigation and the interview itself. Second, granted that the child will be a year older when she would be exposed to cross-examination in any trial in this matter, I am quite satisfied that her capacity will not materially be improved.

All the circumstances that I have mentioned—the very young age of the child, the difficulty in producing a sequential story properly set out, and the fact that time will elapse between the offence and the making of the video and between the making of the video and the cross-examination—are common to cases of that type, and they increase the fear that it will not be possible to proceed in very many such cases.

I give the House another example from the judgment: She cannot, therefore, appreciate the premise upon which an important line of cross-examination must proceed, namely, the variation between accounts given at differing times in the course of recordings. Those are hurdles that children of three and four will not be able to overcome. We are therefore contemplating a situation in which it will not be possible to secure convictions of guilty persons in such cases if so rigorous a test is applied in all instances.

Before that judgment was delivered, but after it had been ruled in court that the video evidence would not be admitted in that case, a case went to the Crown Prosecution Service in my constituency in which there were some similarities. It was clear that an offence had occurred, corroborative evidence was lacking and the Crown Prosecution Service had to decide whether it could proceed, and whether the evidence of the video interviews with children involved was a sufficient basis on which to do so.

I wrote to the Attorney-General to express the fear that the Newcastle case might influence that case and others, and that it might lead the Crown Prosecution Service to be extremely cautious. That case did not proceed, and there may be many others in the same situation now.

Therefore, I express the hope that a combination of the wording of the Lords amendment and consideration of the amendment tabled by the hon. Member for Newcastle-under-Lyme (Mrs. Golding), with the assistance of the NSPCC, might eventually give us a more certain basis of proceeding in cases of that type. Clearly, it will be difficult and a great onus will rest upon the court and the jury in considering whether they can rely on what the child says on the video recording, together with the evidence that an offence occurred—that feature is common to most of these cases—and such other evidence as can be adduced. If the child cannot be heard, the sense of grievance among parents, and the sense of anxiety that it is no longer safe to put a child in a place such as a nursery where such an offence could occur, would be great.

7.30 pm

Common to the two cases to which I have referred is the fact that both relate to public nursery institutions—nursery schools or nursery classes. One can imagine the anxiety of many of those working in the sector if the fear becomes greater and greater, as well as that of parents who have had the shattering experience of knowing that their child has been the subject of sexual molestation and having no way of bringing that child's evidence to bear.

I hope that the Minister understands and recognises the depth of concern on the issue. I appreciate the difficulties, but we must find some way to ensure that such matters are properly brought to trial and innocence proved when there is no evidence of guilt.

Mr. Maclean

The hon. Member for Newcastle-under-Lyme (Mrs. Golding) and my hon. Friend the Member for Brecon and Radnor (Mr. Evans) care deeply about the way in which the criminal justice system treats child victims and witnesses. The right hon. Member for Berwick-upon-Tweed (Mr. Beith) has made clear his similar feelings.

My hon. Friend the Member for Brecon and Radnor spoke deeply and passionately in Committee, but not at great length—thank goodness—on the subject. He has been persistent in hounding the Government to move along the route that he thinks appropriate.

The hon. Member for Newcastle-under-Lyme moved amendment (a) with the eloquence and sincerity that the House has come to expect from her. It is an interesting amendment and I have some sympathy with the points that she and other hon. Members have made, but, for several reasons, I have to advise the House that, although the Government agree with their lordships in amendment No. 43, we cannot at present support its further extension in the hon. Lady's amendment (a).

Both amendments operate on section 32A(5)(b) of the Criminal Justice Act 1988. That section provides that where a child witness has given evidence in chief by means of a video recording, the prosecution may not then examine the child on any matter dealt with in that recording. The purpose was to protect the child from repeated cross-examination designed to expose discrepancies between the video recording and the child's examination in chief.

It appears that that provision may hinder the prosecution in one respect. Where an issue is mentioned but not fully explored in the video recording, the prosecution is unable to question the child any further about that issue. That may prevent the prosecution from bringing a relevant and important point to the attention of the court. During the passage of the Criminal Justice Act 1991, which introduced that provision into the 1988 Act, we took the view that it was sufficient to deal with that danger. We were happy to put the matter beyond doubt by accepting an amendment to this Bill in another place which allows the prosecution to conduct a limited examination of the child to bring out points not adequately dealt with in the video recording.

The hon. Lady's amendment restates in slightly different terms that clarification of the law, but it goes further, in providing that the prosecution may examine the child on any matter dealt with in the video recording, whether adequately or not, if the judge believes that that is in the best interests of the child. As the hon. Lady has pointed out, it would enable the prosecution to refresh the child's memory, or give the child an opportunity to warm up before the cross-examination by the defence. It might make the whole process a less intimidating experience for the child witness, and we are all in favour of that. The hon. Lady's amendment raises some rather difficult issues. The whole purpose of the provision in the 1988 Act is to prevent a child from having to go through the trauma of repeating the evidence already given in the video recorded interview. If the hon. Lady's amendment were accepted, there is a danger that some prosecuting counsel would use the opportunity to cover the same ground in a different way, in the hope that the child's testimony over the closed-circuit television link would persuade the jury in a way which the video recorded evidence in chief did not. It allows the prosecution a second bite at the cherry. Nothing in the hon. Lady's amendment would prevent the video recorded evidence in chief from becoming an alternative to an examination in chief rather than replacing it, as the 1991 Act envisaged.

We also remain concerned about some practical matters. A capacity for the prosecution to warm up a witness at the beginning of cross-examination may not deal adequately with the problems faced by children who have to undergo very long cross-examination. A few simple, warming-up questions on Monday morning would not be much comfort to a child who is still being cross-examined on Friday afternoon. If the intention is to allow the prosecution to warm up the child on more than one occasion—I am sorry about that expression, but it seems to be the one in common parlance—perhaps at the beginning of a new day in court, or when the defence moves on to questions relating to a second count on the indictment, that would not only prolong the trial but could also prejudice the defendant who might reasonably feel that his counsel's examination was being unfairly hampered and interrupted. If it is simply a matter of putting the child at ease at the start of questioning and preventing bullying or unfair cross-examination, the judge is already well placed to look after the child's interests.

In short, I am not persuaded that the benefits of the hon. Lady's amendment would outweigh the disadvantages that I have described. I should be happy to consider any proposals that she and my hon. Friend the Member for Brecon and Radnor, who has long since considered those matters, might have for overcoming those difficulties. In any event, further reforms of the law in this sector would be premature at this stage. I am sure that my hon. Friends would advise me that, much as we welcome the opinion of one learned judge, it would not be acceptable to change the law on the basis of one case or one letter from however respected a judge.

The House and the hon. Lady will know that we have commissioned research by Professor Graham Davies of Leicester university into the effectiveness of the children's evidence provisions introduced by the 1991 Act. We expect his report at the end of the year. In the light of that, we will consider afresh what further changes may be needed. Therefore, although I have listened with great interest and respect to the cases made, I must advise the House to reject amendment (a). However, we can agree with their Lordships on amendment No. 43.

Sir Ivan Lawrence

Can such changes as my hon. Friend has in mind as being possible, if the evidence that he receives is of an appropriate kind, be made without legislation?

Mr. Maclean

Primary legislation would most likely be required if we wished to amend the 1988 Act.

Mrs. Golding

I am saddened by what the Minister has said. The Government seem to be more interested in locking up children than they are in finding a way to give justice to children.

Mr. Maclean

That is unfair.

Mrs. Golding

I feel strongly about it. The way in which children give evidence in court is the result of shoddy compromise. We have gone from one Criminal Justice Bill to another, patching up, adding bits here and amending there, instead of devoting one large section of the Bill to enabling children to give evidence easily in our Courts. I am saddened that the Minister has not taken the opportunity tonight to help children to give evidence by reducing the strains and stresses that they feel.

It is not true that only one judge has said that that needs to be done. Mr. Justice Holland said that he would not subject small children to a confrontation and cross-examination as their first encounter in court. Many judges hold that view, and it is time that the House listened to the people who must deal with such children and know of the stress that they suffer. I am sorry that the Minister could not go further tonight.

Question, That the amendment be made, put and negatived.

Lords amendment agreed to.

Subsequent Lords amendments agreed to.