§ Order for Second Reading read.1.15 pm
§ The Secretary of State for the Home Department (Mr. Jack Straw)
I beg to move, That the Bill be now read a Second time.
The function of the criminal justice system must be wider than merely dispensing justice. Every part of the system has a role to play in reducing crime and the fear of crime. As the House knows, tackling youth crime is one of our top priorities. The Crime and Disorder Act 1998 created a new primary aim for the whole of the youth justice system to reflect that for the first time in statute. The aim is clear: to prevent offending by young people.
We need to deal firmly but constructively with young people who break the law. We must make them understand that offending behaviour will not be tolerated and ensure that they take responsibility for their behaviour as we try to deal with the factors that underlie it, such as drug and alcohol abuse, truanting and lack of parental support.
The Bill creates a new way of dealing with young offenders who appear in court for the first time, by referral to what we describe as youth offender panels. The panels aim to tackle the causes of the offenders' criminal behaviour so that their first appearance in court may, in many more cases, be their last.
The Bill is also designed to help the criminal justice system deliver justice for the people who are affected by crime. It has been a constant theme, across the parties, that, whatever the merits of our criminal justice system—and it has many merits—over the years, the interests of the victim and of the wider community have been undesirably marginalised. We must re-establish the system so that proper dignity and respect are given to the victim and to the community, both of whom are directly and indirectly victimised by crime. The victim must have a proper role to play in the system.
Under our proposals, all young offenders referred to youth offender panels will have to make reparation to their victims or to the wider community so that they understand the impact of their crimes. We are building on ideas of what has been described as restorative justice: a polysyllabic word designed to convey the idea that the justice system should try to restore some balance into the community and that the perpetrators of crime should deliver an element of justice to those who have been affected by them.
The ideas in the Bill draw on a great deal of experience both abroad—especially in New Zealand, where the family conferencing arrangements appear to be very successful—and at home, where some innovative experiments have been undertaken, notably the restorative justice projects in the Thames Valley police area, under the leadership of Charles Pollard, the chief constable.
The Bill provides practical measures to help victims and witnesses of crimes to come forward and give evidence at trials. At present, in far too few rape cases is 386 there a satisfactory conclusion for the complainant: a caution or conviction. It is right, especially in so-called acquaintance rape rather than stranger rape cases, that the key issue of consent should properly be aired.
In such cases, it may well be that there will be a higher rate of acquittal than for some other offences, but it cannot be satisfactory that, at present, only one in 10 of complaints of rape end in either caution or conviction. We have to do better. The victims of rape and other sexual assaults must be given the confidence not only to report the crime to the police in the first place but to take the case to trial.
In our manifesto, we said that we would provide greater protection for complainants in rape and sexual offence trials, and for other people who are subject to intimidation. After the election, we set up a working group to consider how the criminal justice system could improve the way in which it treated victims and witnesses.
In June last year, the group published its report, a weighty and impressive document called, "Speaking up for Justice", which made 78 recommendations, 26 of which needed legislation. The Bill now takes those recommendations forward.
§ Mr. Harry Cohen (Leyton and Wanstead)
I am a bit concerned about my right hon. Friend's assumption that rape cases are likely to have a lower success rate than other cases. He seemed to assume that that was reasonable. Surely that cannot be so, because the standard of evidence that the Crown Prosecution Service asks for is already extremely high before such cases even get to court. I therefore hope that my right hon. Friend will reconsider his view that they are likely to have a lower success rate.
§ Mr. Straw
What I said was not an opinion—it was merely a statement of fact. With great respect to my hon. Friend, there is a difference. Even in my case, and holding the office that I do, although I would like it if everything that I said happened to be true simply by virtue of the fact that I said it, I find that that is not necessarily so.
The point that I was trying to make is that, when we are dealing with the facts about sexual offences, especially rape allegations, it is important to distinguish between what has been called stranger rape and what has been called acquaintance rape. With stranger rape, when typically there has been a violent and sudden attack on a woman not know to the assailant, the issue is rarely whether a rape has taken place; the evidence is incontrovertible. The issue is almost always the identity of the assailant.
In acquaintance rape, the reverse is the case. The identity of the alleged assailant is by definition known. The issue, which is always complicated, because we must remain aware that we are dealing with a justice system, is almost always whether a rape actually took place—in other words, whether there was consent to sexual intercourse.
That raises some complicated questions and, given the complexity of the issues, it is a simple fact that, with the best will in the world, a higher proportion of such cases are likely to end in acquittal than other cases that may be more straightforward. That is not a matter of opinion; I am merely stating some facts.
387 However, we want to ensure that, when a rape has taken place, whether it was an acquaintance rape or a stranger rape—and we should deal in particular with the issue of acquaintance rape—there is a greater likelihood of the case being reported to the police and brought to court and, where the charge is just, ending in a conviction.
§ Ms Julia Drown (South Swindon)
Would not the CPS use the same criteria in either case, which should mean the same success rate whether the case that reached court was an acquaintance rape or any other kind of rape? The Bill is concerned with cases that reach the court, and they should be considered in exactly the same way, whichever type of rape is involved.
§ Mr. Straw
My hon. Friend is right. The basic principles that Crown prosecutors have to follow are the same for any offence. I shall deal with the detail later. We seek to secure a situation in which, because it should be easier to pursue a case to court and then, where it is just, to obtain a conviction, the CPS will no longer have to make a rational judgment that—because of the way in which a case may be derailed by what many would regard as irrelevant, but aggressive, cross-examination about a woman's previous sexual history—that case is not likely to lead to a conviction, and may even be withdrawn from the jury at the end of the prosecution case.
Part I builds on the principles of restorative justice that we set out in the White Paper "No More Excuses", published in November 1997. Those principles mean ensuring that young offenders take responsibility for their actions, make reparation to their victims, and can be reintegrated into the law-abiding community. In the Crime and Disorder Act 1998, we used those principles to reform the youth justice system overall. We created a final warning scheme for young offenders who are cautioned by the police, and a new sentence of a reparation order. Both schemes allow for imaginative interventions to ensure that young people confront the impact that their crimes have had on their victims and make reparation.
Although it is early days yet, the indications—from the experience of the youth offending teams operating in the pilot areas—are that the final warnings are a success. Instead of young offenders getting a warning with a wag of a finger, or a conditional discharge after which the offenders walk from court with no other intervention in their lives, youth offending teams are intervening in the lives of young offenders and their parents to try to get them to face up to what they have done.
We have built on those principles in designing the new referral orders. All offenders who are referred will have to make some kind of reparation, whether it is meeting the victim face to face, writing a letter of apology, or painting out graffiti to make good damage to the community.
I am glad to see a Scottish Member present in the Chamber. We have drawn on the experience of New Zealand and of the Scottish children's panels, which I have visited, and it is striking how much higher public confidence is in the youth justice arrangements in Scotland than in those in England and Wales. I remember writing to colleagues in the parliamentary Labour party before the election asking whether they had comments on the youth 388 justice systems in England, Wales and Scotland and to feed back any information that they had. Overwhelming concern was obvious among colleagues from England and Wales about the ramshackle nature of the youth justice system, but the Scottish system received considerable support from Scottish colleagues. It is not perfect, as everybody recognises, but, by seeking to engage the youngsters and their parents in an inquisitorial rather than adversarial system, it has much more to recommend it.
The panel will operate outside the confines of the youth court. It will be able to discuss the consequences of young offenders' behaviour with them, their family and other supporters, and thoroughly investigate their circumstances so that action can be taken, wherever possible, to stop re-offending.
One of the major criticisms of the youth justice system that we all have, especially those of us who have visited it, is the dreadful spectacle of the young offender being a bystander to the theatre of the court. I have often sat at the back of a youth court—having had to obtain the court's permission to attend, because the hearings are private, although we are also seeking to change that—and seen young offenders who are. at best, detached and observing the proceedings without any engagement in them. They are talked at or talked through, but never talked to. At worst, the young offenders have an insolent attitude to what is taking place and are wholly alienated from it. We are trying to change that situation. We are trying to involve young offenders fully in panel meetings; and to oblige them to face up to what they have done and sign up to a programme of future action.
That approach is no easy alternative. Referral to the panel will be a court sentence, and the local youth offender team will be closely monitoring young offenders' compliance with the programme. Non-compliance will see them back in court for re-sentencing and, at that point, the court will have available all the sentences that are currently available. For many young offenders, the panel meetings will be an early opportunity to turn their lives around. That opportunity must be available to all young people who are ready to accept that they have done wrong and ready to make changes. That is why we want referral to youth offender panels to be the standard way to deal with first-time offenders who plead guilty. The Scottish arrangement is that an issue of fact—which happens infrequently—goes before the sheriff, but, if offenders plead guilty, they go straight to a youth panel. The new system is not a direct replication of that, but will build on the Scottish experience for England and Wales.
In other words, referral should be mandatory unless the court thinks that custody or an absolute discharge is more appropriate. That is why we firmly believe that offenders who have already started to take responsibility for their actions by pleading guilty would benefit most from the new approach. Therefore, we shall seek to reverse amendments made in the other place which made referral discretionary rather than mandatory for the target group of young offenders.
Where there is a multiple set of charges and a plea of guilty to one or more of the offences but not guilty to others, it will be open to the court, under the Bill as originally printed, to exercise its discretion on whether to make a referral to the youth offender panel.
I have referred to the experience in Thames Valley. With the consent of the parties, 1 had the privilege of witnessing a restorative justice arrangement. It was 389 impressive and far more thorough in engaging the young offenders and their parents than anything that I have seen in the youth court.
Before the panel were two offenders who had jointly taken part in thieving from a changing room. The victim who ran the organisation was present. Although she was not directly victimised, in practice she was the victim and had been under suspicion herself, entirely wrongly, for what had taken place. The mother of one boy and the father of the other were also there.
That meeting was facilitated by an extremely skilful police constable who had been trained in that area. She literally confronted the offenders with what they had done and got them to understand, through conversation with the victim, that there was a victim.
In particular, in the course of the meeting, one of the parents tried to excuse his son's behaviour. It became pretty clear from that that one reason why his son had gone down that road was that he had had no guidance from his father, and there was quite a confrontation with the father as well. It really was a case of justice being properly dispensed, and that was of great benefit not only to the offenders but to the victim.
§ Mr. Hilton Dawson (Lancaster and Wyre)
Does my right hon. Friend agree that that demonstrates the necessity of parents at all times being part of the youth offender panel? Is there not a loophole in the Bill, in that children who are looked after might sometimes be represented only by a local authority representative? Will my right hon. Friend reconsider that to ensure that parents of children, even when they are looked after—it is perhaps more important when they are looked after—are required to take part in the youth offender panel?
§ Mr. Straw
I am told that the Bill says that that may or may not be appropriate. The basic principle is clear and runs throughout the Crime and Disorder Act 1998 as well as this Bill. We want parents to be involved and to take responsibility for their children's actions, so far as that is reasonable, but also to recognise that, as the immediate carers of the children and the people most responsible for them—even if a local authority may have care for the time being—they have important responsibilities. I shall reflect on what my hon. Friend says. We should perhaps consider some amendments. As with other aspects of the Bill, we think that this is good, but not perfect, and we are always open to suggestions.
Part II is targeted at victims and witnesses whose youth or disability makes it particularly difficult for them to give evidence at court, and at witnesses who are so frightened or distressed at the prospect of giving evidence that they would rather drop the charges against an alleged criminal than face that criminal in court.
It is worth considering the statistics for witness intimidation, although they show only the tip of the iceberg. In 1995, there were 370 convictions—not complaints—for witness intimidation. In 1993, a study suggested that 75 per cent. of cases discontinued in one month were discontinued because a witness was missing or refused to give evidence. That amounts to 1 per cent. of all criminal cases. Again, that represents the tip of the iceberg.
§ Mr. Elfyn Llwyd (Meirionnydd Nant Conwy)
Clause 27 provides a bar on witnesses giving evidence in person, 390 in other words by pre-recorded video recording. May I respectfully suggest to the Secretary of State that we might be able to adopt the present procedure in cases involving children where there is a live video link of evidence from a place outside the court? Might that not be preferable to a pre-recording?
§ Mr. Straw
It may be. The hon. Gentleman may wish to approach the Committee of Selection to get on to the Standing Committee. As I have said, we think that the provision is good, but we do not regard it as perfect. This is a complicated area and, if suggestions are made, either in Committee or in writing to my hon. Friend the Minister or myself, we shall consider them constructively.
The Bill reforms the law on competence so that anyone who can understand questions that they are asked and give answers that the court can understand can give evidence at trial, unsworn if necessary. It gives witnesses practical help to give those answers.
Under chapter I of part II, courts will have a menu of measures available to them which they can award to any witnesses who need help to give their best evidence, whether because of a disability, because of the frightening or upsetting nature of the case or simply because they are children.
Some of the measures, such as intermediaries and communication aids, are designed to help witnesses communicate with the court. Others are designed to reduce the stress of the court experience: screens, clearing the court, allowing the witness to give evidence through a live link, or admitting a video recording in place of the witness's main evidence. Courts will also be able to direct that witnesses should be cross-examined on video before the trial.
§ Mr. Douglas Hogg (Sleaford and North Hykeham)
There seem to be considerable difficulties in cross-examining on video before a case has got under way, if only because, until the case has got under way and has become fully deployed, it is frequently difficult to know what the key issues will be. If one is faced with difficulty in challenging a witness because the examination on video has already taken place, the case of the defendant might well be severely prejudiced.
§ Mr. Straw
I understand the right hon. and learned Gentleman's exact point. His experience in court is much greater than mine, but I can think of many examples from the time when I practised when, with the best will in the world, it was impossible to predict the course of events until the drama, as it were, started. That is in the nature of the trial process. I found it salutary on a number of occasions when I thought either that I had an absolute winner or a stone-cold loser of a case to find that the reverse was the truth. The right hon. and learned Gentleman is correct to raise that concern.
My hon. Friend the Minister of State reminds me that it is to try to deal with that circumstance that we have provided for there to be secondary disclosure as well as primary disclosure before cross-examination on video in advance of trial. It is worth taking these powers. They will be used sparingly and in special situations. I repeat that we are ready to consider appropriate changes if the right hon. and learned Gentleman has particular suggestions to make. There is no suggestion that such cross-examination would become routine, but we seek to deal with some of the major problems that exist.
391 Some of the measures are already available for some witnesses. Child witnesses can already give evidence through video recordings and live links under the Criminal Justice Act 1988. The Bill makes the measures more widely available: courts will be able to award them to any witness who is eligible under the Bill. That includes complainants in rape and serious sexual offence trials, who will be presumed eligible unless the court is satisfied that they do not need help.
To return to a point raised earlier, the Bill also protects complainants in sexual offence cases from humiliating and irrelevant cross-examination designed to intimidate and undermine them.
Chapter II bans unrepresented defendants from personally cross-examining complainants in rape and sexual offence trials, and gives the court the power to impose bans on defendants' personally cross-examining witnesses in other cases where the witness needs protection. This is not a new idea and it is important to put that on the record. There has been a ban on defendants' personally cross-examining child witnesses in sexual and violent offence cases since the Criminal Justice Act 1991. There has been some suggestion that, if we extend that ban, it will somehow lead to miscarriages of justice. We know of no example of the use of the power in the 1991 Act leading to any allegation of a miscarriage of justice. Under this Bill, we propose to extend the ban to cover offences of kidnapping, child abduction and forced imprisonment.
We are going beyond the powers of the 1991 Act to make arrangements for defendants who do not want to appoint a lawyer to conduct the whole of their defence. They will be able to appoint a lawyer just to cross-examine, and conduct the rest of the case themselves. If they refuse to appoint their own lawyer, the court will be able to appoint a lawyer to test the evidence on their behalf. So witnesses' evidence will not go untested, and defendants' right to a fair trial will not be affected. However, I am clear that the ban will protect witnesses' right not to be mistreated in court.
§ Mr. Hogg
I can conceive of many circumstances in which a defendant who has refused to appoint a lawyer and has had one appointed by the court to conduct the relevant cross-examination will decline to give instructions to that lawyer. In those circumstances, there would be no effective cross-examination because there could be no effective cross-examination.
§ Mr. Straw
With great respect to the right hon. and learned Gentleman, we have thought of exactly that circumstance. We have anticipated that somebody may virtually refuse to recognise the court, or regard as a fundamental liberty the right to cross-examine in person and withdraw from any co-operation. I do not accept his conclusion that cross-examination would therefore be impossible, because the lawyer who is brought in, as it were on someone's behalf, to assist the court will have access to all the papers.
In many such cases, the line of defence will be pretty obvious. To be blunt, in a stranger rape case, the accused will be the wrong person, and in an acquaintance rape case, the woman will either have consented to the alleged 392 sexual intercourse or the alleged sexual intercourse will not have taken place. So I do not honestly think that there is a forensic difficulty. It will obviously be easier if the defendant gives instructions, but not doing so will not by any means render the arrangement impossible.
In putting before the House the reasons for this change, I have only to mention Ralston Edwards and Milton Brown. They were defendants in rape cases and used the opportunity of cross-examination to humiliate and intimidate the women whom they were alleged to have raped. That was completely unacceptable; we cannot have that. Of course, at the same time, we must ensure that the justice system is exactly that: just.
It is wrong for the trial process to be abused in such a way. Given the abuse of power and trust that a sexual offence trial involves, further intimidation in court must act as a very powerful deterrent to victims who are deciding whether to press charges. Unless we impose a total ban on personal cross-examination in rape and sexual offence cases, as we are proposing, we cannot rule out that possibility for complainants.
Fear of confrontation with the alleged rapist is only one reason why rape victims often do not press their cases through to trial. Another reason is the fear—it is a justifiable fear—that the trial will focus not on the alleged offence but on an examination of the complainant's past sexual behaviour and character. Indeed, in her research on the treatment of rape complainants in court. Sue Lees found that, in more than half of the cases with which she was concerned, the complainant was subject to unjustifiable examination of her sexual history.
It is plain that past sexual behaviour is sometimes relevant in sexual offence trials, but there is clear evidence that it is being introduced too often and that a much better framework is needed to set out when it should not be admitted. Chapter III of part II provides that framework.
Clause 40 places tight restrictions on evidence and questioning about a complainant's sexual behaviour before and after the alleged offence. We do not believe that someone's sexual behaviour, whether promiscuous, chaste or somewhere in between, is generally relevant to whether they have consented to have sex with a particular person on a particular occasion—still less is it relevant to whether they are reliable witnesses. Sexual behaviour will still be admissible as evidence where it is really relevant to an issue at trial such as whether sex took place or whether the defendant honestly believed that the complainant was consenting, but the Bill will limit the ability of the defence to use the complainant's past to distract the jury from the issues at trial.
§ Mr. Cohen
Much of what the Bill does to limit the use of a woman's past sexual history as evidence in such trials is right, but will my right hon. Friend consider the loophole that I believe still exists in the Bill whereby a woman's sexual relations with someone other than the accused can be taken into account in the trial hearing? Why should that be the case? Why should a woman's relations with someone else be relevant in any way to an accusation of rape against a specific person?
§ Mr. Straw
We are dealing here with a process of justice. We want to see justice for victims but also for defendants. Making judgments on the matter has involved a very fine balance. If we go too far to protect the victims 393 by banning all sorts of cross-examination or adduction of evidence, we may end up with a situation in which a jury will not convict. We may end up with exactly the opposite of that which we wish to avoid. We have sought significantly to restrict the admission of evidence about previous sexual behaviour in terms of time and in relation to other individuals. Generally speaking, the evidence that is admissible will relate to what happened at and around the time of the alleged offence. There could be circumstances in which evidence relating to the woman's conduct with other people is relevant, and admission of such evidence is not completely ruled out in the Bill, but it will be restricted.
I am conscious that I have spoken already at some length. The issue of the reporting restrictions in the Bill understandably caused some controversy in the other place and I am sure that it will be the subject of discussion on the Floor of the House and in Committee. The Bill, like the report "Speaking up for Justice", seeks to make the law on reporting restrictions more consistent so that it is less confusing and less likely to be undermined by loopholes in the legislation. The idea is that all restrictions imposed in England, Wales or Northern Ireland will now be enforceable throughout the United Kingdom and will apply to all media, including the internet.
§ Ms Roseanna Cunningham (Perth)
I hope that the Home Secretary received advance notice of the precise point that I wish to raise. It relates not so much to the content of the Bill as to the inclusion of Scotland in clause 48 and the related clause 40. Given that it is unlikely that the Bill will be through the parliamentary procedure by 1 July—the point at which the transfer of powers takes place—and given that, with the exception of abortion and drugs legislation, criminal justice and procedure are entirely devolved matters, what will be the parliamentary basis after 1 July for proceeding with the Bill as it relates to Scotland?
§ Mr. Straw
I am grateful to the hon. Lady for giving me notice of that question. First, the provisions create an offence in Scotland, but only in so far as that is necessary to enforce court orders made in England, Wales and Northern Ireland. As the hon. Lady will know, and I certainly know all too well, it is a matter of some concern that, for example, injunctions can be imposed in England, Wales and Northern Ireland but require separate action in Scotland. I do not make that as an ad hominem point; it is just that I have had some experience of the matter. It is anomalous and we are seeking to deal with it.
I am advised that the Bill will become satisfactory law whether it receives Royal Assent after or before 1 July. I am happy to take further advice on the matter. I will ensure that my hon. Friend the Minister of State replies in more detail on that point. If we cannot get the best, if not the most expensive, legal advice by then, I shall write to the hon. Lady. My hon. Friend was very expensive when he was practising—high quality—and no one but he knows what a sacrifice he made in order to take the Queen's shilling.
The courts will have a new power to impose restrictions to protect witnesses whose fear of the consequences of publicity is so great that they are unable to co-operate fully with an investigation or to give their best evidence at trial. The Bill extends the restrictions on the reporting of information likely to lead the public to identify children 394 who are involved in criminal offences. At present, the law can protect children in that way only once charges have been brought. Under the Bill, it is proposed that the protections will start at the point at which a criminal investigation begins.
Those measures prompted a good deal of discussion while the Bill was in another place. Representations were received from the print and broadcasting media; their concern was that the changes proposed imposed an undue burden on them and their ability to report news effectively. We listened carefully to all that was said, and amendments have been proposed as a result.
§ Mr. Andrew Lansley (South Cambridgeshire)
I have a question about the general structure of clause 43. The Home Secretary states that, in his view, the Bill is compatible with the European convention on human rights. He will know that that convention sees the right to freedom of expression and the right to privacy as co-existing. Why, therefore, is the Home Secretary structuring the Bill so that the restriction on the right to freedom of expression in relation to those aged under 18 is effectively a blanket ban on reporting, rather than a ban that is in line with the convention? Such a ban would imply a set of criteria that presuppose a need to impose reporting restrictions, rather than the presumption that reporting restrictions, and the abridgement of the right of freedom of expression, are right in all circumstances.
§ Mr. Straw
I can assure the hon. Gentleman that I would not have signed the certificate unless I had been convinced of that. If clause 43 ends up before the European Court of Human Rights in Strasbourg, the mere fact that I signed a certificate will not necessarily be taken as good evidence before that court. I accept that, but we do our best; it is an important part of the process of bringing legislation before the House.
The principle of reporting restrictions has long been accepted; it goes back at least to the Children and Young Persons Act 1933. At present, there is an anomaly because those restrictions on reporting names and identities kick in only when the proceedings start, and not, for example, at the time of arrest. That is anomalous because, if the evidence against someone is extremely strong and the proceedings begin quickly, that person receives greater protection than someone against whom the evidence might not be strong and might later be dropped. Such a person might be the subject of press reporting, while someone against whom there is strong evidence will not.
I have thought long and hard about this matter. I want to make it clear that, although we have moved a long way to meet the concerns of the print and broadcasting media, we want discussions to continue. We shall also take account of what is said on both sides of the Standing Committee, because achieving the right balance is very difficult. We need to protect children from undesirable and unnecessary publicity, and it needs to be borne in 395 mind that that includes children who are defendants or potential defendants as well as those who are innocent victims. At the same time, the press and other media have an important role to play both in our democracy, by holding institutions to account, and as part of the way in which we hold individuals to account for their criminal behaviour. To reinforce that, my hon. Friends and I fully backed the arrangements that were made in the Crime (Sentences) Act 1997 to give youth courts the power, after conviction, to lift bans on reporting altogether, without the consent of parents. We have sent out a circular to that effect and discussed it with the Guild of Editors and would like to see that power used more widely. The naming of young offenders, especially those in the older age bracket—15, 16 and 17-year-olds—is a powerful weapon and it should be used. That is not in any sense inconsistent with a concern to ensure that, up until the point of conviction, those people receive some protection. However, as I said, we do not believe that the provisions of the Bill as it stands are the last word; we are open to proposals on how to achieve a better balance, and my hon. Friend the Minister is taking a keen personal interest in that.
Justice is often portrayed as a balancing act, but it is not only about weighing various pieces of evidence so as to reach the right verdict on the defendant; it goes far wider than that. Justice matters to the whole of our community. Unless witnesses are able to give evidence at trial—and get help to enable them to give that evidence, if help is needed—crimes will go unreported, uninvestigated and untried. When offenders get to court, witnesses, victims and the whole community rely on us to take action to ensure that those offenders do not reoffend. If we cannot take that action, we run the risk of those offenders becoming career criminals, committing more and more crimes against their community. That must be the greatest injustice of all.
With this Bill and its predecessor, the Crime and Disorder Act 1998, we have tried to rebalance the criminal justice system. I commend the Bill the House.
§ Mr. John Greenway (Ryedale)
This is an important Bill, notwithstanding its rather curious marriage of two distinct and unconnected areas of policy. We believe that the issues would have been dealt with better in separate Bills, but the Government chose other priorities for their legislative programme, one of which hit the buffers a day or two ago in another place. No matter—the Bill's provisions are designed to achieve worthy objectives, and we are happy to give them a broad welcome. Although we are concerned about some of the more detailed provisions, we shall not divide the House, because we believe it important that the principles that underpin the measure should have the support of the whole House. We shall endeavour to be constructive in proposing changes, and today we shall indicate the general areas of concern that we want to explore in Committee.
When discussing youth justice, it is worth reminding ourselves that the majority of young people lead law-abiding lives and their experience of crime is as victims—of theft, bullying or assault. On occasion, they are the victims of violent assault or tragedy. I know that the Home Secretary will support my saying that, today, 396 we remember the many young people who, 10 years ago, lost their lives at Hillsborough while attending the FA cup semi-final. On a lighter note, I ought to invite the right hon. Gentleman to say whether, as a Blackburn Rovers supporter, he is entirely satisfied with the outcome at Villa Park last night. I certainly am not, and it is a pity that his right hon. Friend, the Secretary of State for Trade and Industry, was not able to intervene. However, that is another matter.
In respect of the provisions of the Bill, we agree that youth offender teams are an important development in youth justice policy and have a crucial role to play in supervising young offenders in the community. The previous Government first proposed the idea in its consultation paper, "Preventing Children Offending", which was published in March 1997. At that time, the concept of such teams related to juveniles of a younger age than those covered by the provisions in the Bill. However, I am sure that the Home Secretary, in the same spirit of co-operation that is obvious in my remarks, will acknowledge that the proposals for teams or panels to oversee the behaviour of young delinquents, so as to address early their propensity to commit offences, have been on the agenda for discussion for some time.
We agree that it is time to act. The proposal to require youth offender teams to establish youth offender panels, to provide tailor-made programme for individual offenders, is a natural extension of the team's role. We acknowledge that, but the panels will face a stiff challenge. They will need to address the growing problems of truancy and of drug and alcohol abuse that blight the lives of many young people and lead inexorably to crime. It is vital that the contracts drawn up with young offenders address those problems. The specific references in the Bill to those areas are welcome, although we will need to ensure that the range of measures that make up the contracts is sufficiently comprehensive.
We think that the concept of referral orders in part I is generally sound. However, it goes without saying that the execution of those ideas in practice will determine their success. The implementation of this initiative will depend largely on the quality of those appointed to the panels. We want to explore in greater detail the Government's thinking about who will be appointed to the panels and who will play a leading role.
We are concerned, too, that the resource implications have been glossed over and not thought through fully. In a recent answer, the Minister of State confirmed that, in the last year for which figures are available—I think that it is 1996—no fewer than 37,000 young offenders were found guilty for the first time in magistrates courts. The majority of them pleaded guilty. If the Government insist—the Home Secretary reminded us of his position today—that all those offenders should automatically be made the subject of referral orders, rather a lot of panels will have to be established each year, if and when the concept is extended across the country.
That is a big if. Our main criticism is that much of the Government's youth justice programme continues to be subject to extensive experimentation and piloting. We understand that, with any new policy initiative, it makes sense to see what works and adapt accordingly. We do not criticise that approach. However, the Government continue to make bold claims about their innovative approach to youth justice and how their policies are making a big difference to youth offending across the 397 country. The Government are entitled to make that claim, but we are equally entitled to say that, judging from the Government's achievements so far, this youth justice strategy has been—and continues to be—substantially oversold.
We have a long way to go before the real difference on the ground matches the impression of concerted action on the basis of which the Government's ideas are trumpeted. How many child curfew schemes have been established? How many parenting, child safety and anti-social behaviour orders—to which I shall turn in a moment—have been made? More to the point, how many action plan orders have been made? Our point is that it will take several years for the youth justice measures in this Bill to be piloted, adapted and extended to all parts of the country. In all circumstances, we encourage Ministers to be rather more candid about how much there is still to do before the reality matches their claims.
There are some very good ideas that, by and large, we support. Many of the more obvious successes in preventing youth offending, such as Crime Concern—the Minister and I will judge this year's Crime Concern awards shortly—resulted from initiatives taken by the previous Government. The Thames Valley experience to which the Home Secretary referred commenced under the previous Government. We are a long way from the comprehensive implementation of the Government's programme for youth justice on a national scale. Our message to Ministers is to recognise that fact. We urge them to show a great deal more commitment to delivering on the promises that they have championed to the electorate. That will be a theme of our approach to the Bill in Committee.
We encourage the Government to adopt a less rigid and more flexible approach to referral orders. As the Home Secretary acknowledged, the Bill's provisions were amended in another place to provide flexibility to magistrates in determining when a referral is or might be appropriate. We appreciate that the amendment needs refinement. I am slightly surprised that, as the right hon. Gentleman said, the first two clauses are contradictory. We accept that the amendment is not perfect but we urge the right hon. Gentleman not to use the Government's huge majority to reverse it without first listening to the arguments, some of which I shall explore now and some of which we shall certainly wish to explore in Committee.
I remind the Home Secretary that, in establishing the arrangements for action plan orders in the Crime and Disorder Act 1998, the Government provided flexibility and choice to the courts. That seems to be in sharp contrast to the mandatory nature of the proposed referral orders. Yet, in many respects, the nature of both orders is similar. I constantly refer to a very good brief on the provisions of the Crime and Disorder Act. It states that an action plan order is a new community sentencespecifically tailored to address the cause of a child's or young person's offending behaviour.That is equally the purpose of the proposed referral orders. Why is there such inflexibility on referral orders? What is the real thinking behind the mandatory nature of the order? Why exclude the Crown courts from passing a referral order sentence when they can impose an action plan order? Why limit the order to first-time offenders? What is the likelihood of confusion between action plan orders and referral orders?
398 Would it not make better sense if action plan orders were also delivered through a youth offender panel? The key point is that the Government have failed to make out a case for why all first-time offenders pleading guilty should be referred to the youth offender team in the way that is proposed. I think that the explanation of the Government's rationale lacks credibility. It ignores the realities of the day-to-day administration of youth justice.
We certainly agree that a properly established youth offender panel referral is in principle much to be preferred to a more general community sentence such as a community service order, a supervision order or a probation order. Reference to a youth offender panel—this is the strength of what the Government are proposing—would provide an opportunity for the young offender to have significantly more contact and support and guidance from the panel than he would, under current experience, from a supervision or probation order. However, it may not be an appropriate solution in each and every case where immediate custody is not an option.
For example, we think that it is wrong to assume that a first-time offender, perhaps in early to mid teens, has a behavioural problem or a propensity to reoffend that needs to be addressed in a referral order. The majority might have such a problem or propensity but many will not. Not everyone will have received a final warning or reprimand. The majority may be in that position, but not all. The youth involved may have been led astray by slightly older boys, some of whom may be young adults over 18 years of age. However, having been caught, he could well be expected to mend his ways.
It is a fact that the majority of youngsters who are caught and challenged do not reoffend. With that in mind, a heavy fine may be more appropriate in many instances. For example, if a youngster of previous good character becomes involved in a fracas late at night, that might involve older teenagers. Let us say that there is a collective charge and the youth admits to assault. Surely a fine would be less cumbersome in such a case than automatically requiring the court to refer the youngster to the youth offender team.
Why is the use of a conditional discharge ruled out? An absolute discharge is permitted. It could mean that a court would be likely to order an absolute discharge to avoid reference to a youth offender team. The benefit of some of the conditions attached to a conditional discharge would thus be lost. We shall explore the point in Committee.
Two of the key objectives of the referral order are the opportunities for reparation and restitution, but those may not be appropriate in every case. As the right hon. Gentleman acknowledged, restorative justice is still in its infancy—so much so that he had to explain to the House what it meant. The experience can be difficult for some victims, as the experiments carried out elsewhere show. In such cases, a court may be better advised to use a compensation order or a reparation order.
Tomorrow, when we debate the provisions of the Football (Offences and Disorder) Bill, the House will be asked to agree new powers for courts to make restriction orders on football hooligans. To some degree, however, the provisions of that Bill will be discretionary. There is a reference to a duty to impose a restriction order, but that is discretionary, having regard to all the reasonable circumstances. What happens if a 16 or 17-year-old youth pleads guilty to a first offence involving assault outside a football ground?
399 The mood of the House and the view of the Home Secretary in supporting the Bill introduced by my hon. Friend the Member for West Chelmsford (Mr. Burns) are that restriction orders should be imposed. If it is a first offence, it is not clear to us how such a restriction order will be imposed given that, under the Bill as the Government want it to be, not as it is now, there will simply be a reference to a youth offender team.
All these arguments suggest that magistrates should have rather more discretion than the Government originally thought necessary when they introduced the Bill in another place and, as the Home Secretary reminded us, as is still his preference today. The rest of the Government's youth justice reforms, such as the action plan order, provide for flexibility. That is equally essential to the success of these measures. The Home Secretary said that he was always open to suggestions. In Committee, we shall explore the most appropriate way of providing for discretion.
If the Government insist on a greater degree of certainty in the application of the sentence than is envisaged in the amendment passed in the other place, a potential solution would be to require a referral order in all cases where the court would otherwise impose a community sentence, leaving all the other options still available.
The overall experience of other criminal justice and sentencing initiatives shows that, unless there are sound reasons, such as dealing with repeat offenders under the Crime (Sentences) Act 1997, rigidity and inflexibility tend to work less well and encourage a sense of injustice. The right hon. Gentleman will recall that I am one of those who bear the scars of our arguments about unit fines in the Standing Committee that considered the Criminal Justice Act 1991.
§ Mr. Greenway
Indeed. That goes back a long time.
It is important to bear in mind that such feelings of injustice could arise if automatic referral to a youth offender team comes to be seen out there in the real world as an extremely heavy-handed response to a relatively minor offence to which a youngster pleads guilty.
We also question whether, by restricting the youth offender team referral to first-time offenders, the Government are targeting the most important group. Through the orders, we should be addressing the problem of persistence. That is the Government's main target, as we heard again today. Up to now, their youth justice policies have focused almost entirely on tackling the problems of persistent young offenders.
At present, under the Crime and Disorder Act 1998, an action plan order can be imposed on a persistent offender, regardless of when he is sentenced. However, an action plan order has a life of only three months, whereas a referral order for a first-time offender can be for 12 months. An action plan order will not be delivered by a youth offender panel. We believe that it would be better if a youth offender panel delivered the contract for which both orders provide.
§ Angela Smith (Basildon)
The hon. Gentleman's point seems to be that the Government are concentrating far 400 too much on first-time offenders. Does he accept that all persistent young offenders were once first-time offenders who were not properly dealt with?
§ Mr. Greenway
The hon. Lady anticipates my next point. We are not saying that there is no case for focusing on first-time offenders. We share the Government's determination to nip in the bud early signs of criminality, but the Government's view is that all first-time offenders must be referred to the youth offender teams. That must mean that some will be referred when that is not necessary or in their interest.
We accept that the majority should be referred, but not all. The court ought to have some discretion with regard to such referrals—for example, if the parents are supportive, a parenting order in conjunction with a heavy fine could be sufficient. The Bill rules that out.
§ Ms Sally Keeble (Northampton, North)
As I understand it, the panels are for first-time offenders who plead guilty. Because of the hours during which the panels will meet, it will be much easier to involve parents. Will the hon. Gentleman clarify whether he is in favour of that?
§ Mr. Greenway
Certainly. We are not saying that that is not a good idea—on the contrary. However, we are presenting to the Home Secretary a reasoned argument for discretion. Moreover, youth offender panels will not be an infinite resource. We question whether it is right to waste a panel's resources on an offender who does not need a youth offender panel referral. For a first-time offender who has pleaded guilty to a relatively minor offence, that is a heavy-handed treatment. The panel's resources could be deployed on another, more deserving case—possibly someone who has been in court before. Under the Bill, such cases are ruled out.
Why should the experiment be limited to first-time offenders, when there is such obvious potential for including in the project repeat offenders and involving their parents, as the hon. Member for Northampton, North (Ms Keeble) suggests? Until now, those people never had the opportunity of benefiting from such a scheme. It is almost as though the shutters have come down, and all those who have been in court and pleaded guilty before can never have this wonderful new sentence—only those who appear in court and plead guilty in the areas where the scheme is to be piloted, and eventually, in five or six years, nationwide. That is nonsense. If it is a good idea, let us be more enthusiastic about how we implement it.
§ Mr. Dawson
It is interesting to hear the hon. Gentleman expressing views that I used to hold. If we are to tackle youth offending, should we accept youth crime as a normal part of growing up, or should we say that, every time a young person gets into trouble with the law, perhaps after he or she has been cautioned a couple of times, that should occasion an inquiry?
§ Mr. Greenway
I agree. Of course we should be saying that youth offending is not to be tolerated. Given what the hon. Gentleman has said, I look forward to his support for the parts of my speech on enforcement, which I shall come to later.
401 I add to my argument by quoting what the Home Secretary has put in the Bill. Clause 2(3) gives him the power to alterin any way the descriptions of offendersfor whom referral orders are available. I cannot read that to mean anything other than that, in due course, Ministers will wish to extend the scheme to repeat offenders who are showing clear signs of persistence and whom we need to deal with. Why wait a year or two to do that? Why not do it now? The extension of the referral order to other offenders will be an attractive proposition if the panels are properly focused.
The Home Secretary will remember—we talked about it at the time—my general enthusiasm for the youth justice system in Massachusetts, which was commented on in the 1993 Home Affairs Select Committee report on juvenile offenders. It is still a good read.
I recognise that we are a long way off the Massachusetts youth justice department system, whereby youngsters "work their way out" of prison, but it is relevant—it goes to the heart of the philosophy behind the Government's proposals. The concept of a youth justice board—a nationwide body—a nationwide network of youth offender teams and individual panels for offenders to deal with their offending behaviour through contracts, makes sense only if we anticipate moving much further in the direction of individual contracts, not just for first-time offenders who plead guilty, but for all young offenders, whether they have just committed their first criminal act, or are more persistent offenders.
Ministers should recognise now, while we create the legislative framework for referrals and panels, the need for flexibility, and the opportunity for adaptation and extension of the experiment to repeat, as well as to first-time, offenders. Above all perhaps, they should recognise the need to avoid the confusion that will arise between action plan orders and referral orders—confusion over when each is available.
I put it in the most simplistic terms. As the Bill is drafted, or as the Government would like it to finish in the House, a mandatory reference is required for all first-time offenders who plead guilty. There is a structure in the Bill for the Home Secretary to extend the project if he wants to. It would be better to turn the thing on its head, make the referral order available for all young offenders and deal with the implementation of the experiment through guidance to courts on how to use the referral order sentence.
That would make much more sense. It would treat magistrates and youth courts with the respect over their discretion that they deserve. It would be a better use of the resources to be made available to the youth offender panel.
In Committee, we will want to challenge other rigidities in the Government's plans. Why, for example, limit the scope of the sentence to guilty pleas? That provides potential for the manipulation of the court's sentence. It is a serious point; I hope that the Home Secretary will listen to it. It would be perverse if it became the norm to plead not guilty to avoid the youth offender panel. If the panel has the teeth that we think it should have, the Government will have to consider that prospect.
Why rule out any use of the restraint of liberty? Will courts be able to justify a custodial sentence when youngsters who breach the rules are referred back to 402 them? I listened carefully to the Home Secretary. He said that the whole sentence range would be available to courts, but we have to bear in mind that the court originally thought that custody was inappropriate for the offence. Therefore, if youngsters breach the rules and are referred back to court, will they get a custodial sentence?
Similarly, electronic monitoring would surely add much-needed teeth to the panel's powers of supervision and intervention. Are there no circumstances in which Ministers would envisage or countenance the use of tags or electronic monitors to ensure attendance of teenagers at school to defeat and to deter truancy, attendance at an attendance centre, or the following of a curfew to punish bad performance? Those ideas need to be explored.
To achieve their full potential, referral orders must deliver a clear sense of certainty of consequence if contracts are breached. What will be the point of preaching zero tolerance of anti-social and criminal behaviour if the same principle does not apply in relation to sentences imposed on those who are caught and prosecuted?
If the intention is, as I think it is, to put the fear of God into youngsters who commit crime—the point was made by the hon. Member for Lancaster and Wyre (Mr. Dawson)—we will need to ensure that the consequence of reoffending is certain. That threat must carry conviction. Unless youngsters are convinced that, if they breach the rules or their contract, or reoffend while under the care of the panel, retribution will be swift, the Government will not achieve their aims
§ Ms Keeble
The hon. Gentleman referred to where the plans had been tried out. I have seen such projects tried out. They work only because young people plead guilty and can then be worked with. He suggests the sort of sledgehammer approach that he said earlier was not appropriate for a first-time offender.
§ Mr. Greenway
No, I do not. If I have given that impression, I apologise. It seemed that that approach was acceptable in the action plan order that was included in the Crime and Disorder Act. The order is available even if people are convicted by the court and did not plead guilty. The principles are the same. If the young offender, however he gets through the referral order—let us discuss the Government's plan—pleads guilty, is referred to the panel, agrees a contract and then breaches it, what do we do with him? What attitude do we instil in his mind as to what to expect if he breaches the contract that he willingly embraced and entered into?
Many community sentences fail; those of us who follow youth justice know that. Home Office figures show that, on a good day, the failure rate of supervision orders for 10 to 17-year-olds is 80 per cent. They fail because there is inadequate supervision and because breaches are not treated firmly and harshly enough. That was the clear conclusion of the Home Affairs Select Committee report six years ago and in the latest report, with which my hon. Friend the Member for Woking (Mr. Malins) was involved. Therefore, things have not changed.
The 1993 report recommended that breaches should result in a fresh court appearance and a custodial sentence—there was all-party agreement. We should build in the safeguards needed to ensure that the second chance does not become the norm. Word would soon get round if a second offence or breach of contract did not lead to punishment. That is why cautions were such a disaster.
403 However, that does not mean an unnecessarily harsh crackdown—a concern raised by the hon. Member for Northampton, North. It would affect only those who breached the conditions. Those asked to serve on youth offender panels will have an opportunity to influence for good the lives of the youngsters placed in their care. That is one reason why I am so enthusiastic about the panels. We shall want to explore in Committee their membership, as well as the need for regular contact. Significantly more contact than is common under a typical probation or supervision order will be essential. We also want to talk about the many disciplines from which members of the panel may be drawn, including the probation service, youth workers, social workers, police officers, magistrates and other volunteers. Which will be the dominant influence? That could have a marked bearing on outcomes.
There is considerable potential in the youth justice elements of the Bill, but their success depends on a more determined, more focused and more flexible approach than is apparent from the measures that have been set out. The all-too-obvious failings over enforcement that have so disastrously characterised probation and community service orders in recent years must be avoided. Programmes must be rigorously researched and evaluated from the outset, or there will be a repetition of failure. The shortcomings that are experienced must not be kept hidden or tolerated to protect failed ideologies or professional status.
My hon. Friend the Member for Woking will speak at the end of the debate about the clauses that deal with evidence. There is general agreement that special measures are justified for the giving of evidence by vulnerable or intimidated witnesses. However, as the Home Secretary acknowledged, the proposals raise some issues of principle and we shall want to ensure in Committee that the right balance has been struck between the interests of witnesses and the interests of the accused. For example, there is some concern about the use of pre-recorded evidence, to which the hon. Member for Meirionnydd Nant Conwy (Mr. Llwyd) referred.
As the Home Secretary knows, at the election, both the Conservative and the Labour parties promised action to protect rape victims from extensive cross-examination in court by their alleged attackers. He will also recall that we tried to press the argument during the passage of the Crime and Disorder Bill. My hon. Friend the Member for Hertsmere (Mr. Clappison) was involved in that. The Home Secretary rightly drew attention to the provisions on the questioning of child witnesses in the Criminal Justice Act 1988, which I have referred to in relation to another issue.
We agree that the issues are complex and some of the arguments are finely balanced. My hon. Friend the Member for Woking, who has greater experience of such matters, will seek to explore whether it is right to rule out any questioning by the accused or whether there may be circumstances in which the leave of the court may be sought. This is not a partisan point. The Opposition have perhaps an even greater duty than the Government to ensure that the Bill is far reaching and properly addresses the concerns of judges and lawyers on how best to serve the interests of justice.
404 The other place debated at some length the provisions in chapter III of part II for the protection of complainants in proceedings on sexual offences. The need to prevent spurious references to the previous sexual history of rape victims could not be clearer. The Home Secretary referred to the cases of Edwards and Brown. Some years ago, when I was sitting somewhere near where the hon. Member for Basildon (Angela Smith) is now sitting, I urged my right hon. and learned Friend the Member for Folkestone and Hythe (Mr. Howard) to change the rules on disclosure. I referred to the case of a teenage girl who was subjected to an appalling rape ordeal. The police and the Crown Prosecution Service abandoned the prosecution of five young men on charges of gang rape in a west London multi-storey car park because the girl had been raped before and they understandably felt that it would be unreasonable to subject her to cross-examination in court about her previous experience, which the law would have allowed. The Bill will rightly prohibit such humiliating questioning of rape victims.
The debate in the other place resulted in a change to the wording of clause 40(3)(b)(ii). The change would allow reference to be made to the previous behaviour of the complainant in circumstances similar to those surrounding the case that I have mentioned. I shall not labour the point now, but I ask the Minister to read the wording of the redrafted sub-paragraph and the wording of the explanatory notes, because the two are not the same. There is significant doubt about what the sub-paragraph is supposed to mean. The explanatory notes say on page 25:The issue is whether the complainant consented and the evidence or questioning relates to behaviour that is extremely similar to the defence's version of the complainant's behaviour at the time of the alleged offence and cannot reasonable be explained as a coincidence.That does not mean the same as the wording of the amended sub-paragraph. We can explore that later. It shows the importance of examining the words very carefully. If we get the meaning wrong and the legislation is interpreted differently by the courts, we could well find that what Parliament thought that it intended is not reflected in the Bill.
§ Ms Keeble
When the hon. Member for Woking (Mr. Malins) deals with the issue later, perhaps he will take on board the point that the proposals are strongly supported by male rape victims. I have had several letters on the subject from constituents. The example that the hon. Gentleman gave involved a woman, as most rape cases do, but we should also consider male rape victims.
§ Mr. Greenway
I endorse what the hon. Lady has said.
We also welcome the changes made in the other place to the proposals on reporting restrictions for offences committed against persons under 18. My hon. Friend the Member for South Cambridgeshire (Mr. Lansley) intervened on the Home Secretary to point out that not everyone is satisfied. The Guild of Editors thinks that the clauses need further attention. We anticipate constructive dialogue in Committee as we test whether the changes meet what is required.
The Bill provides many important opportunities to improve our criminal justice system and the provision of youth justice. We have an opportunity to ensure that vulnerable witnesses can give evidence free from fear, distress and intimidation in a manner that properly 405 recognises their needs as child witnesses or any needs arising from any disability that they may have. We have an opportunity to prevent the victims of rape and serious sexual assault from having to relive their ordeal in court because of unnecessarily intrusive questioning by their assailant or by having slurs cast on their character without proper justification. We have an opportunity to protect young people who are victims of serious crime from over-intrusive or sensational press reporting of their ordeal. We have the opportunity to create a new approach to tackling the problems of young offenders. However, to make a real difference, the Government must show that they are prepared to make the commitment and put in the resources that are vital to the success of a dedicated crusade against youth crime. We have yet to be convinced of that commitment.
§ Mr. Hilton Dawson (Lancaster and Wyre)
I am delighted to have the opportunity to speak—especially so early—in the debate, and particularly to address some of the issues concerning children and young people. The Bill is extremely important and worthy, and my right hon. and hon. Friends in the Home Office should be proud of it. I am also pleased to hear that it will attract widespread support, which is right and proper.
There are many issues to discuss, and the Bill will provide many opportunities to air them. Moreover, the subsequent Act will provide opportunities for piloting projects, to determine how the initiatives envisaged in the Bill work in practice. Those are some of the Bill's positive elements in dealing with a very difficult aspect of life.
Some of the Bill's provisions are long overdue. Others of its provisions—such as that on restorative justice for young people, developing ways in which they might make amends that go far beyond mere punishment—are novel and hopeful. They may just give us a profoundly better way of reducing offending by young people, while assisting young people's positive reintegration into their own community.
I worked in youth justice throughout the 1980s. Today, I heard Opposition Members, perhaps naturally, claim that all the Bill's good provisions were their idea. Although they would probably also claim that they had a good youth justice system in the 1980s, it did not seem like that from my perspective then. The policy framework within which we had to operate was a shambles.
I was trained in working with young people, at Lancaster university's centre for youth crime and community, explicitly to deal with offending behaviour, to manage youth justice systems and to develop non-custodial disposals—alternatives to custody. In 1983 and 1986, I established and managed two radical projects on alternatives to custody in Lancashire, and am still proud of the fact that we had some immediate success. In 1987 and most of 1988, no young people in the Lancaster and Wyre district were sent into custody, and we reduced the very serious offending of some extremely persistent young offenders.
I have also dealt with the issue of breach, and therefore accede to many of the statements made by the hon. Member for Ryedale (Mr. Greenway). Although breach was sometimes a very difficult matter to deal with within the culture of a social services department, it is an essential element of a radical community-based service.
406 Although it is an aside, I really should say that I am completely opposed to use of Home Office custody for children—which is not to denigrate the efforts of excellent and worthy people working with young people in prisons. It should be a fundamental principle that the very small proportion of young people who are a danger to others or to themselves should go to properly appointed, high-quality, small-scale and child-centred secure units operated entirely within the principles of the Children Act 1989. Recent scandals, such as those at Medway and Feltham, will recur until we get the matter right. I very much hope that part I will prove eventually to have been a very big step in the right direction.
Although we did some excellent work and made some real progress in youth justice work—that experience should never be discounted—we did not get very many things right. We did little to reduce youth crime overall. We did virtually nothing to reduce the serious impact of offending on individuals and entire communities. As the hon. Member for Ryedale said, we deliberately relied on other sentences—cautioning, cautioning-plus, conditional discharge, attendance centres, supervision orders, community service and all the rest of it—thereby causing incoherence in the system, difficulty in targeting interventions, and real difficulty in ensuring that young people got the same explicit, positive message.
We relied on those sentences partly because we knew that social work interventions do not always work, and certainly do not always work immediately. We were also very sceptical of the youth justice system, thinking it important to include in sentencing tariffs which might result in custody and recidivism as many non-custodial options as possible. Eventually, worthy aims led us into a rarefied form of social work that was sometimes out of touch with the community, wherein problems often arose.
Too often, family problems and behaviour patterns were compounded and entrenched before considerable resources and expertise were directed towards them. That is one of the real reasons why, as I said, I have changed my mind about the way we should operate youth justice. We have to address the practical issues in trying to deal with some of the problems that the previous system allowed to become very difficult and entrenched.
The system proposed in the Bill is greatly different from, and potentially so much better than, the previous one. It is founded upon the welcome innovation of youth offending teams—joined-up youth justice—that were pioneered partly by my colleagues in Lancaster after I worked there. The Bill explicitly aims to prevent offending by children and young people. It will introduce restorative justice for young people, properly facing them with the consequences of their behaviour, and then offering them a way back into the community. The new approach is fundamentally different from the old one.
With the greatest respect to the other place and to the hon. Member for Ryedale, I think that they missed the point on referral orders—which will offer a very early opportunity to begin an inquiry, and to establish, right from the start, that offending by young people is wrong, that it should not be tolerated, and that we should face it with all the resources at our disposal. In dealing with youth offending, we should seek imaginative solutions, and bring together not only all the statutory agencies but the whole community. It is essential that they be offered to the large majority of young people who will be
407 appearing in court for the first time and pleading guilty, who will not be getting an absolute discharge and who will not be going into custody.
Soon after offending, young people will face a considerable intervention in their lives: a concerted investigation involving parents and other significant adults. Under the programme, young people will be challenged to make reparation to victims; to face the consequences of their actions; to work for the community; to break patterns of behaviour or friendship; to establish new patterns of behaviour or attendance; and to confront sometimes serious problems.
I have done some of that work before, although not all of it, and not at such an early and potentially significant stage. There has not been the opportunity to bring quite so many measures together in such explicit statutory guidance to young people. That is a powerful tool for working with young people. The Home Secretary is right to pilot the order and wise to allow himself the possibility of coming back to extend its range to other groups of young offenders. I hope that the Home Secretary will not be too quick to do the latter because there are major resource implications. A considerable proportion of the young offending population might be eligible for the programme. If experience in Scotland and New Zealand is anything to go by, the vast majority of those young people eventually will be available for such disposal.
The statutory attendance of at least one parent—and hopefully both—at the youth offending panel is crucial. It is vital that parents play their essential part in understanding their young person's criminal behaviour, dealing with it and being helped to deal with it. As I have suggested, I am concerned that clause 5 allows a loophole whereby courts might not require the parents of looked-after children to attend the youth offending panel that is inquiring into the criminal behaviour of their child.
Under the Children Act, at the very least, the mother retains parental responsibility, even if her child is subject to a care order. In reality, the vast majority of looked-after children are merely accommodated under section 20 of the Children Act at parental request and can be discharged from care at a moment's notice. Crucial Children Act concepts of parental responsibility and of local authorities having to work in partnership with parents are relevant here.
I hope that my right hon. and hon. Friends will look at the issues again to ensure that, where a child is looked after, both the parent and the representative of the local authority must attend the youth offending panel. The last parents who should be given an excuse not to come to the panel are parents who are having such great difficulty managing their children's behaviour that the children are looked after.
I have seen the suicide attempts of young people who have endured years of abuse, who have had their concepts of love and trust cruelly confused and undermined, who have found the courage eventually to disclose their plight to some adult who will listen, who have had their families reject them, their homes broken up and their education disrupted—only to find that the case collapsed when it came to court because of the often proper concern of adults that those children were too vulnerable to take on the experience of court.
408 There was concern that children would not be able to withstand the ordeal of living it all again in court in front of the person who abused them. I have seen the anger and despair of young people who know and regularly re-live every second of their abuse, yet who are made to feel as if they are disbelieved and as if they were responsible for what had been done to them. They are made to feel as if they contributed to their abuse and that they will be denied justice. They are made to feel utterly worthless and that no one cares, and that they might as well continue to put up with the perpetrator having their way with them.
I commend my right hon. Friend the Home Secretary for proposing a Bill that defines children under 17 as eligible for assistance. The Bill proposes special measures on a statutory basis, such as screens; allowing a video interview to be shown as the witness's evidence; allowing a witness to give evidence from outside the court by a television link; clearing members of the press and public from the court so that evidence can be given in private; not wearing wigs and gowns; allowing a witness to be cross-examined on video before trial; allowing an approved intermediary to help a witness communicate; and allowing a witness to use communication aids. Those are vital measures.
The bones and the thrust of the Bill are excellent. It is sad that a great deal of the legislation could and should have been carried out in the wake of the Piggott report of 10 years ago, but the Government are showing themselves to be powerful protectors of children. I utterly support them in that.
§ Mr. A. J. Beith (Berwick-upon-Tweed)
It is always helpful to have hon. Members taking part in our debates who have recent practical experience of working in the areas concerned, and not just lawyers. [Interruption.] I hesitate to upset the Minister of State—who is a lawyer—before he replies to the debate.
Although the Bill has some points of controversy in it, its aims, purposes and philosophy are fully supported by my party and very much in line with what we have sought to do and with what we put before the electorate at the general election.
The first part of the Bill aims to create a more coherent and effective youth justice system. The second part aims to provide greater protection to witnesses and victims during court proceedings. Both those areas—as the hon. Member for Lancaster and Wyre (Mr. Dawson) said—have been neglected in recent years, and reform is very much needed.
The first part of the Bill proposes a new sentence for young people convicted for the first time; that is, referral to a youth offender panel. The panel will then agree a contract with the young offender which will be based on the principles of restorative justice. The meeting between the panel and the young offender will seek to involve the parents and, where agreed, the victim.
It has been Liberal Democrat policy for some time that the youth justice system in England and Wales should be reformed by building on the best practice of the Scottish hearings system, and on other overseas experience of restorative and hearings-based justice. We welcome, therefore, that part of the Bill.
We should be clear that this is not simply creating a new sentence for young offenders, but that it is the first step towards a new system of youth justice; a system that 409 seeks to confront more effectively young offenders with the consequences of their actions, while providing a more comprehensive response to their offending to stop them reoffending in future. The measure is the first step in that direction.
The evidence available suggests that a restorative approach improves the satisfaction of victims with the justice system. Despite the obvious difficulties for victims in coping with participating in a restorative system, the evidence that we have so far suggests that it is so much more satisfying to a victim than the traditional court system tends to be that, for many victims, it overcomes the initial apprehension that they might have about coming face to face with someone who committed the offence against them. Too often, victims feel ignored by proceedings in the courts. This system allows much a greater role and consideration of the victim's perspective.
Reoffending rates for young offenders are extremely high. The Audit Commission and others have reported how the youth justice system has stagnated, and I hope that the new approach will breathe some life into youth justice.
Too little is done to provide an effective response to young offenders that will address the causes of their behaviour, which is one of the elements of the contract. That is a key advantage that the Scottish hearings system has over the youth justice system in England and Wales, as I have seen for myself.
The Government have decided to focus their new approach on first-time offenders whose offences are not serious enough to make them eligible for a custodial sentence. We accept that there is merit in carefully and gradually introducing such an approach, but we very much hope that it will not be the end of the process. I hope that, on the evidence of success, the Government will be ready to extend the scope of those eligible for referral to a youth justice panel. The Bill gives the Secretary of State the power to do that and the intention is clearly that that power should be used.
My noble Friends referred to the make-up of youth offender panels and the question of discretion, which was the subject of a successful amendment in another place. We support the new referral order and the creation of youth offender panels and we want to ensure that they are widely used by the courts. We have always wanted to avoid the Government's being over-prescriptive towards the courts, so we are bound to have some sympathy with a power to exercise discretion.
The Bill may have defined too tightly who is eligible for a referral order, and seeks to impose a mandatory sentence, in effect, when that eligibility is established. We should look a little more carefully at those provisions.
Part II is designed to give greater protection to complainants and witnesses during court proceedings, thereby encouraging and enabling witnesses to give evidence that may lead to convictions. That is likely to improve the effectiveness of the criminal justice system, by making it less traumatic for individuals to help to bring the guilty to justice. We support the raw thrust of that part of the Bill, which correctly identifies an area that is in need of reform. Victims and witnesses are too often neglected and too little thought is given to their role in the criminal justice system.
Rape has been identified for some time as an area in which conviction rates have plummeted, but we should not forget that conviction rates in general have been 410 falling over the past 15 years. At a time when recorded crime was rising year after year, not only conviction rates but the total number of convictions fell. Lord Warner referred to the worryingly low number of convictions for child abuse and other offences involving children.
One aspect of that downward trend may be the unease felt by many about giving evidence in criminal proceedings. It is bad enough to have gone through the trauma of the offence itself, and to submit oneself to legal proceedings that are traumatic in a different way is a pretty fearsome challenge for someone who has already had a harrowing experience.
It is important fully to maintain defendants' rights, but it should be made as comfortable as possible for complainants and witnesses to give evidence. The National Society for the Prevention of Cruelty to Children has done research that identifies the often traumatic nature of court proceedings for young children.
Chapter II of part II is designed to protect children and complainants in certain sexual offence trials from the traumatic experience of cross-examination by defendants in person. That provision is clearly directly inspired by the controversy that followed two rape cases in which individuals were subjected to prolonged and distressing cross-examination by—as it was proved—their attackers: the Milton Brown and Ralston Edwards cases.
In one case, the cross-examination went on for days, with the defendant wearing the clothes that he wore in the original attack.
§ Mr. Hogg
Does the right hon. Gentleman acknowledge that the second of the two cases that he mentioned went to appeal and that the Court of Appeal made it very plain that the trial judge has robust powers to prevent the humiliation and intimidation of the complainant by the defendant, and that those powers should be exercised?
§ Mr. Beith
That was indeed the background to the sentence that I was about to utter when the right hon. and learned Gentleman intervened. I was about to say that, although there has been progress in the courts since the two cases to which I referred, the fact remains that they have left a legacy of anxiety and fear among potential complainants about how they may be treated. It will take more than the advice from the Court of Appeal to overcome that, which is why the Government are right to legislate on the matter.
We concluded in our policy paper that the reform could be undertaken without jeopardising defendants' rights in any significant way or breaching the European convention. Obviously, the Government have reached the same conclusion. The important point is that defendants should retain the right to use cross-examination but must use legal representation if they want to exercise that option.
We concluded that the circumstances in which the defence in a sexual offence trial may use evidence of the complainant's sexual history need to be reformed. That is also the Government's purpose in chapter III. We welcome their aim of minimising the use of such evidence. The perception that rape victims will be subjected to a barrage of personal questions clearly deters individuals from seeking justice and from contemplating a trial.
411 In roughly half of rape cases permission is sought to bring in evidence of sexual history, and in 75 per cent. of those cases that permission is given. The law should be reformed so that such evidence is used only when it is absolutely relevant to the case.
§ Mr. Beith
One such possibility is specifically covered in the Bill. The immediate sexual history of the complainant in relation to the defendant could have some relevance—the Bill specifies a 24-hour limitation—when the issue at stake is whether the defendant could have had a reasonable belief in consent. It is a most difficult and contentious area, but we cannot exclude it wholly from consideration in a trial. If we did, as the Home Secretary said, we would risk making juries unwilling to convict, as it would be urged on them in the proceedings that they had not been able to consider that aspect.
It is arguable, although more questionable, that, if persistent rape accusations had been made by the complainant in comparable circumstances, all of which had been disproved, that might have a bearing on the case. The hon. Lady should be wary of attacking her friends on this issue, because it is certainly our view that there should be reform in the legislation to minimise the use of sexual history, which is so rarely relevant, in rape cases.
There could be a quid pro quo, so that, when evidence of the complainant's sexual history was allowed, the prosecution should be allowed to adduce evidence of the defendant's. That should certainly deter the unscrupulous use of sexual history by the defence in an attempt to excite hostility to the complainant among the jury. We will consider the Government's proposals during our further proceedings and we may table amendments to explore such possibilities.
We also want the Government to consider anonymity. Complainants in rape cases rightly have anonymity, which is critical in limiting intrusion into the alleged victim's life and in encouraging the reporting of crime. Consideration should also be given to granting anonymity to the defendant, as used to happen. The anonymity of the alleged victim can be completely undermined when the defendant is identified.
Because of the extremely grave social stigma of such cases, it can be argued that individuals should retain their anonymity while no case is proven. Reputations can be ruined merely by allegations, even when there is subsequent acquittal. Revelations about admitted sexual relations with the complainant may be damaging in themselves and would never have been made public but for the charge of which the defendant is acquitted. Even when the whole story is found to be false, people suffer from the claim that there is no smoke without fire. We have all heard that statement made, often in very unjust and inappropriate circumstances.
This is not a theoretical argument. Some individuals have committed or attempted suicide because of reports of the charges that have been made. We may never know whether they were innocent or guilty, but the knowledge that that pressure is there should be a warning to us. 412 We therefore want the Government to consider further the idea of anonymity for the defendant unless and until a conviction is obtained.
Another aspect of the Bill that has excited controversy and been referred to by everyone who has spoken in the debate is the extension of reporting restrictions. Part II, chapter IV extends those restrictions with the aim of giving clearer protection to certain witnesses. Clause 43 extends current restrictions on the identification of alleged child and juvenile offenders and witnesses, and is to be applied before court proceedings start.
There has been some concern about that in the media. We understand and accept the aim of the clause, and recognise the fact that the Government have already attempted to tighten the provisions, but some criticisms are still being made and it is important that we get the rules right.
The most extreme example of the difficulties into which the media could be led is that of Dunblane. Once a school has been named, the anonymity of a child is at risk. Once that has happened, when a serious criminal offence is widely known to have taken place, it produces absurd stories in which the media can say only that something happened somewhere in Scotland. The way in which the media are expected to behave then enters a world of complete unreality.
The Government will have to consider carefully whether the provisions might have been drawn too widely. The Minister in another place gave an undertaking that the Government would be ready to consider any amendment consistent with the theme and philosophy of the Bill.
§ The Minister of State, Home Office (Mr. Paul Boateng)
§ Caroline Flint (Don Valley)
I welcome the opportunity to speak in the debate, as the Bill is of enormous relevance to my constituents, especially young people. I should declare an interest at the outset as an adviser to the Police Federation of England and Wales.
My good friend the Secretary of State—I see that my right hon. Friend is just leaving the Chamber; goodbye. My right hon. Friend and other Ministers will be aware that the witness protection measures in the Bill were widely welcomed by the Police Federation annual conference, and that reflects the broad and sympathetic consensus in support of the Bill.
I shall focus on youth offending. During the short time that I have represented Don Valley, I have sought to get to know the work of the local police, the magistrates and the three prisons in my constituency, not least the Hatfield young offenders institution.
My first visit to a prison was to attend a lifers day, for 18 to 21-year-olds who had received a life sentence. It was an annual opportunity for their families to come to 413 an open day and talk with them, and the officers and other staff at the prison, about the regime and the young men's educational and vocational opportunities. I felt that it was a positive day, but 1 also came away feeling taken aback by the enormity of what had happened to those young men's lives.
Without generalising too much, I have to say that I am sure that, if I had looked deeply into the history of those young men and their involvement in crime, I could have seen the pattern that led to the violent episode that resulted in the life sentence. I hope that the work that the Government are doing to tackle early offending—the offending that often takes place in groups, and leads to violence later—will be effective, so that, in future, if I continue to represent Don Valley, I shall have to attend fewer such days.
Each of the bodies that I have mentioned has a contribution to make in curbing youth crime, and I hope that I will be able to illustrate that fact. I agree with the hon. Member for Ryedale (Mr. Greenway)—he has also left the Chamber; I do not know whether that has anything to do with my speech. He talked about the positive contribution that most young people in our islands make. It is important for us to illuminate that fact and talk about it, because debates about young people today tend to dwell on the negative. We should talk often about what young people do that is right, rather than what they do wrong.
In my experience—I am sure that every other hon. Member will agree—most young people in our constituencies are law abiding and see themselves more as victims of crime, who are sometimes intimidated out of using the services that are there for them. For example, they may not be able to go to the playgrounds, youth clubs or other places that they want to go to because a small minority intimidate them and prevent them from using the services.
When I held a surgery for children aged from 10 to 17 last year, it was interesting to hear how strong their views on law and order were, and what they would like the Government to do. That included raising to 18 the legal age for buying spray paints, because they were worried about vandalism. They also all felt that there should be compulsory identity cards. I pointed out the concerns that some people would have about that prospect, but their passion and their concern stemmed from their perception that their community was being ruined. They were also upset about being lumped together with those who caused the trouble. That is why they wanted to resort to such strict measures to tackle the problem.
Mine is a traditional Labour constituency. I do not know whether young people there would describe themselves as old Labour or new Labour, but they would certainly describe themselves as good citizens who want to try to make their community work. There are many talented, ambitious young people in Don Valley who make a useful contribution.
Doncaster boasts one of the highest proportions of children of school age who play football. We have a thriving voluntary sports sector and, like many former coal-mining communities, where brass bands were once commonplace, children are encouraged to learn an instrument at an early age, to take part in out-of-school activities and to join orchestras. Many schools in my constituency pride themselves on their sporting 414 achievements, and on producing talented and rounded young people with real choices ahead of them. They can develop all those pursuits during their school lives and continue them into their adult lives.
I am pleased to share with the House the way in which the positive work of young people in my constituency is both celebrated and encouraged by the South Yorkshire police. I shall give two examples. When we debate how to tackle youth offending, it is important to show how the police can organise positive activities for young people.
First, there is the South Yorkshire police's Lifestyle project, which is run over the summer months. It encourages groups of young people, with an adult mentor, to establish a community programme that they organise and raise funds for themselves. At the end, there are prizes to celebrate their achievements.
Later this year, there will be Operation Cypriot, organised by Doncaster's B district police services. It centres round a youth convention being held in Rossington in my constituency, where young people will be invited to meet all the youth organisations—those involved with everything from roller hockey to chess clubs and dancing classes. All the children will receive a questionnaire about their activities and interests, asking how they would like to spend their leisure time and what facilities they would like.
To build on that initiative, the police are also seeking funding for a space for those young people. I understand that people are talking about a giant tent structure—that reminds me of the millennium dome. It would be a place where kids could hang out, relax and chat away from their parents—all young people want that opportunity—without causing a nuisance or having to spend lots of money.
It is in the context of wanting to see young people enjoy life, to prosper and to move on into adult life with confidence and real opportunities, that the Government, and certainly my hon. Friends and myself, are determined to try to stop youth crime. During the Tory years, some people said that young people committed crime because they had no hope or opportunity—as if that somehow partially explained or justified petty crime.
Lack of opportunities has something to do with the problem, but that is not a satisfactory excuse, not least because many children move from vandalism to theft and burglary at an early age. It is not uncommon to find children of 10, 11 or 12 who are practised burglars. We see those young people, who are often no more than children, making wrong choices that may mar their chances in life and leave them excluded from secure employment, stable relationships and the love and security that we all seek. That is why it is necessary, indeed essential, to divert children from anti-social and criminal behaviour at the earliest possible opportunity.
I am pleased to report favourably on the approach of the Rossington police to young people. The constables draw up a profile of the estates that they will patrol—a beat profile. They identify the schools, pubs and places in which children and young people congregate to cause a nuisance. Those areas are targeted for attention and incorporated in a clear strategy to tackle anti-social behaviour.
The previous Home Secretary talked about "walking with purpose", but the approach of the Rossington police is more policing with purpose—the directional policing 415 recommended by the Audit Commission. The use of local intelligence to anticipate problems, intervene and act strategically provides effective deterrence and value for money from my local police service. Using probationers from the tutor unit and special constables, the service mounts mobile operations targeting possible trouble spots, most recently in Wadworth and Edlington in my constituency, where groups of children cause a nuisance and are often in possession of alcohol.
The targeting of those groups serves to separate the followers from the hard core. Rossington police are keen to encourage parents to take greater responsibility for knowing the whereabouts of their children, and they have a policy of taking children home or writing to their parents about any activities that are anti-social. The letters that the police write to parents will soon be reinforced by overt video recording, so that parents can view the interaction between the young people and the police. That strategy is very much in line with the Government policy of nipping youth offending in the bud. Zero tolerance it may not be, but effective deterrence it certainly is.
The measures in the Bill will complement the establishment of the youth offending teams required by the Crime and Disorder Act 1998. In tackling young people with problems that lead them into crime, each agency can focus on how its work can address those young people's problems, whether it be the education service addressing truancy and disaffection; the social services addressing problems in families; the health authority if young people have drug or psychological problems; and the police if the young people have already been involved in causing nuisance or petty crime.
§ Mr. John Bercow (Buckingham)
Much of what the hon. Lady says is unexceptionable and will be endorsed by Conservative Members, but why is it justifiable for the Bill to circumscribe the power of magistrates and to render compulsory the referral of under 18-year-old first offenders to youth offender panels? Surely the judgment about whether a referral should take place should be a matter for the discretion of experienced magistrates, not the legislative fiat of this House.
§ Caroline Flint
I can comment only on the picture at the local level in my constituency. I visited the magistrates court the other week with my hon. Friend the Minister, and partnerships are already being created to work on fast-tracking cases and to develop the youth offending team. The magistrates see that as an opportunity to work with other agencies to ensure that the process is inclusive. My local magistrates welcome the Bill and see it as an opportunity, not a threat.
The establishment of the youth offending team allows agencies to see the whole picture and not just their aspect of it. The Doncaster youth offending team has 23 full-time staff, representing each of the agencies. They are located in one building and will begin their work in October, some six months ahead of the Government's required date. That blending of skills and expertise—including the courts, social services, police and schools—is a true partnership approach and is the way for the future. The traditional hierarchies, inter-agency rivalries and competing cultures must be replaced by learning and co-operation.
416 The new approach is also about value for money. There is no point in trying to re-invent the wheel by working separately instead of taking an agreed approach, and that point was well made by my hon. Friend the Member for Lancaster and Wyre (Mr. Dawson). The role of Government has been decisive. It is not about meddling or creating bureaucracy, but about adding focus and strategy to ensure that resources are directed at specific social priorities. Government at its best is about rejuvenating the role of the public services working with young offenders, and the new approach will inspire innovation and good practice.
I mentioned earlier the fast-track measures that we are taking in Doncaster for adults and young offenders who plead guilty to minor offences. We are not a pilot area and the scheme has worked only because of the collaboration between the magistrates, the police and the Crown Prosecution Service. My hon. Friend the Minister visited the magistrates court with me last week and we saw in action a turnaround of 48 hours, which does not allow young people to go out and commit other offences while they wait for their case to be considered. The scheme involves as few as six pieces of paper, which any police officer will welcome as reducing the amount of paperwork and the amount of time spent waiting around in court.
More importantly still, in the future, quick referrals will be able to be made to the youth panel to initiate a programme of action to tackle young people's offending. The Bill is a further step towards making such initiatives work and ensuring that they are holistic, solid and substantial. It is not a soft option to place people before a panel of specialists who can consider all aspects of offenders' lives, including their schooling, behaviour and family conditions. The programmes that the young people must follow will not be an easy option either.
Too often, young people go through the system and are given fines that they cannot pay. That is not a good use of our justice procedures or our time. A programme of activity, supervision, counselling and community service will meet the young people's needs and, as has been mentioned, satisfy many victims who do not feel that the justice system serves them. The new approach is about confronting young offenders with the consequences of their offending and reintegrating them into their neighbourhoods. I hope that it will be a valuable step towards halting the pattern of offending.
The team approach should promote good practice and widen the experience and options available. For example, Doncaster magistrates and police have developed a presentation for young offenders on the verge of a custodial sentence. The presentation is given by prison officers and police officers, and is known as "Prison? Me? No way!" It demonstrates the handcuffs that are used when offenders are marched from court to prison, and describes the routine of prison life and the risks to personal safety in prison. It involves taking the young offenders' fingerprints and taking them to the holding cells so that they feel what it is like to be locked up. The strategy is to lay bare the experience of being processed and detained. It underlines the gravity of their situation and is designed to jolt them into modifying their behaviour before the demonstration becomes a reality.
I said earlier that I have three prisons in my constituency. I have seen the stark reality of prison life for young men serving life sentences and for young men 417 serving their first custodial sentence in an open establishment. I recommend to every young person that they avoid that path at all costs. However, I have seen how Hatfield young offenders institution provides a service that reintegrates young people into the community. I would happily nominate the institution for a charter mark, because it is not just good, but an outstanding example of how to discipline, educate and rehabilitate young offenders. It is an open institution and, as one inmate described it to me, the rules are the bars. Each inmate holds the key to their cell, and violence and bullying are rare. If one asks any inmate to whom they would turn if they had a problem, the answer is any member of staff. The staff are caring and positive and exactly what we should expect from our Prison Service.
The challenge is far from simple. I asked the governor at Hatfield how many of the young men there were fathers and he said that the majority were. Those young men range in age from 18 to 21. If we do not tackle the issue of offending, we will affect not only those individuals, but the families that they create. Hatfield has taken a positive approach to that problem by operating parenting programmes to try to make a connection between the inmates, their role as fathers, and their children and partners or wives. That approach gives the inmates valuable skills to improve their chances of succeeding where they may have failed before. Places such as Hatfield have something to offer the youth offending teams and the youth referral procedure. They are at the sharp and most extreme end of our justice system, having to remotivate and re-engage such young men into the community. I hope that their experiences can be shared with all who seek to motivate those whose early disaffection leads them into petty crime.
I welcome the Bill, which is an important step forward. I hope that all will agree that we want to reduce the number of young people in custody but, to do so, we must start early, with meaning and purpose. The Bill is one part of the jigsaw that allows that to happen.
§ Mr. Elfyn Llwyd (Meirionnydd Nant Conwy)
I declare an interest as a criminal lawyer of some 23 years' standing, working as a solicitor and a barrister.
The Bill deals with some substantial and weighty areas of policy and criminal practice. This being a Second Reading debate, I shall confine myself to some snapshots of certain areas that cause me concern.
The first principle that one should enunciate in any justice system is that there should be a careful balance between the rights of witnesses and the rights of defendants. We must carefully guard against prejudicing the right of every individual to a fair, open and public trial. Equally, we must be mindful of the rights accorded to witnesses who, in effect, are also bona fide consumers of the criminal justice system that is available to us all.
Therefore, there is a genuine and widely held view that some of the Bill's provisions might undermine the right to a fair public trial. Despite the Home Secretary's certificate on the face of the Bill that, in his view, it accords with the convention on human rights, there are some problems that I hope that we shall be able to investigate further, possibly in Committee.
In opening the debate, the Home Secretary generously said that the Bill is not perfect and that any reasonable suggestion will be listened to carefully in due course. 418 I respect him for saying that and I hope that that is the way in which my comments will be viewed by all in the Chamber.
I am sure that the Bill has many good points, but I honestly and sincerely believe that, in some areas, it comes close to breaching article 6 of the convention incorporated into the Human Rights Act 1998. In particular, article 6.1 states:In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
Furthermore, article 6.3(d) states that a defendant has a rightto examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him".That article is highly pertinent to major parts of the Bill.
I referred earlier in an intervention to clause 27, which advocates video recording of evidence in chief—that is pre-recordings. There are some safeguards in the Bill, but the clause appears to fly in the face of article 6. One has to wonder why the current common practice of live video link, which is prevalent in child cases in criminal courts, cannot be extended to this area in an effort, rightly, to minimise the trauma for witnesses.
Typically, in any child case nowadays in a criminal trial, the child will not be in the court. The evidence will be fed through a video link to the jury, judge and counsel. I see no reason why that cannot be applied in this instance. It ensures that the witness is outside the actual forum, but at the same time it is a live version of evidence which must always be preferred to any form of recording.
§ Mr. Llwyd
The right hon. and learned Gentleman made that point earlier, and he is right. For cross-examination to take place before a case is embarked on in the court process is rather unusual and unworkable. I defer to the right hon. and learned Gentleman's greater experience in this area, and I agree with him.
§ Ms Beverley Hughes (Stretford and Urmston)
Does the hon. Gentleman also accept that, in cases in which a victim has allegedly been subjected to a traumatic violation, whether a child or an adult, it can be of benefit in enhancing the quality of such evidence for it to be recorded as soon as possible after the event, and that that is a positive attribute of video recording in such cases?
§ Mr. Llwyd
I hear what the hon. Lady says, and that also happens in child cases in criminal courts; she makes a valid point, but I was referring to the cross-examination of witnesses. However, I take her point and readily accept what she says.
419 It is important to note that one does not hear complaints about the way in which the system works in child cases, and they are often the most traumatic form of case, particularly when there has been sexual abuse and so on. The system seems to work fairly well. One does not hear of any complaints from witnesses, the courts or the defendants about the fairness of proceedings. I am sure that, in due course, those matters can be developed in constructive debates.
However, there is an area of concern. Nothing is more likely to test the veracity of any evidence than effective cross-examination. It is incumbent on all involved in any criminal process to bring out the truth and to ensure that justice is done. Therefore, to allow the cross-examination of a witness before a trial is completely different from anything that we have previously seen in the criminal process. Adequate and proper live cross-examination at the trial of a witness is highly necessary to bring out all the issues. I shall not labour that point; I have made it sufficiently.
The House of Commons research document states:Of the two possible benefits arising from introducing video pre-trial cross-examination, the working group considered that the main one was enabling the witness to give evidence away from the court room.That can be done now, without the Bill, if the practice in respect of children giving evidence in a rape trial, or any other form of trial, is adopted. However, such matters can be debated more fully and minutely later.
With regard to complainants in proceedings relating to sexual offences, here again clause 33 could be in breach of article 6. I have no sympathy for any perpetrator of such offences, but surely the right to cross-examine a witness in person is vital to a defendant. We should not lose sight of the fact that, in England and Wales, a defendant is innocent until proven guilty.
The defendant should be entitled to conduct the defence in the manner in which he or she considers best with a minimum of interference. There may well be situations where, for example, the defendant is best placed to cross-examine, but I am not ignoring situations where clearly that can get out of hand—for example, where the complainant might have to relive in the cold light of day the horrible trauma of a sexual assault. I have every sympathy for anybody in that position and, as we know, there have been a few well-publicised cases of this nature. One can only imagine the torment of the complainant in those cases.
A balance needs to be struck. I question whether clause 33 is necessary. The matter was thoroughly examined by the Lord Chief Justice in the Court of Appeal in the case of Brown. In that case, the Lord Chief Justice endorsed the following criteria which he referred to from a previously reported case. He said:1 That the trial judge, without descending into the arena or acting on behalf of the defence, should ask such questions as he saw fit to test the reliability of prosecution witnesses;2 That where appropriate the judge might ask the defendant whether there were matters he wished to be put to a witness, although it would be for the judge to decide whether and how such matters might be put;3 That it was to be borne in mind that a heavy duty lay on the prosecution to be scrupulously fair as to how the case was presented so as to avoid any prejudice to the defendant;4204 That in summing up it was desirable to direct the jury that it was always open to a defendant to act in person but that where he chose to do so they should bear in mind the difficulty of his doing so properly;5 A sensible course was for the judge to explain some or all such matters to the jury at the outset of the trial to enable them to understand the course which the trial followed.
The Lord Chief Justice went on:The trial judge was obliged to have regard not only to the need to ensure a fair trial for the defendant but also to the reasonable interests of other parties to the court process, particularly witnesses, and among those witnesses who were obliged to re-live, by describing, an ordeal to which they said they had been subjected.It was the trial judge's clear duty to do all he could, consistently with giving the defendant a fair trial, to minimise the trauma suffered by other participants.A trial was not fair if a defendant, by choosing to represent himself, gained the advantage he would not otherwise have had of abusing the rules in relation to relevance and repetition which applied when witnesses were questioned.Judges did not lack power to protect witnesses and control questioning. The trial judge was the master of proceedings in his court.That was what the Lord Chief Justice said directly on this point in the Brown case.
§ Mr. Dawson
Does the hon. Gentleman seriously imagine that a rape victim would carefully weigh the words of the Lord Chief Justice before appearing in court as a witness? Is it not more likely that they would be terrified at the thought that the trial judge would not be able to keep proper control of the proceedings, and that they would be abused and go through the whole process again?
§ Mr. Llwyd
None of us would want that to happen and I am not underplaying the trauma that any such person would face. With respect, the hon. Gentleman cannot base his arguments on an inability of the judiciary to get up to speed on that. I am sure that judges are attuned to the need for this provision. I practise in the criminal courts and I have not found any who are wholly unattuned to the subject, even though that is a recent pronouncement. I question whether we need this. It is a debating point. I am not saying that I am right, but I am trying to contribute to the debate. I hear what the hon. Gentleman says and I know that there is considerable force in it.
The Lord Chief Justice has gone further than that. He spoke on this subject in the other place and said:I have never suggested in this House or anywhere that the provision is contrary to the European convention. The argument of the noble Lord, Lord Lester, is one that I readily accept"—in other words, that there is a breach,But it is not so long since what gripped the popular press and rightly engaged the attention of your Lordships was the series of unjust convictions which were a blemish not simply on the criminal justice system but on our national life. This House must act at all costs to avert the risk of miscarriages of justice. It is for that reason that I, in company with the noble Baroness and the noble Lord, believe it to be urgently important that this provision shall not be brought into force unless and until it is clearly shown by practical experience to be needed."—[Official Report, House of Lords, 1 February 1999; Vol. 596. c. 1400–01.]That opinion is supported by many legal practitioners on both sides in the other place.
Allied to those points is the apparent prohibition in clause 40 of cross-examination of a complainant about sexual behaviour. The 24-hour cut-off point appears to be 421 somewhat artificial. It is true that, often, cases turn on this and it can be highly relevant, even decisive, if one considers that the majority of sexual offences involve complainants and defendants who are known to each other. Many will have a relationship that may extend over a considerable time. The clause needs to be amended.
I question whether it would be appropriate to amend the clause to provide for a prohibition unless the prohibition would prejudice a fair trial of the accused or not be in the interests of justice. Such an amendment has been suggested by Liberty. I will not repeat the words of Baroness Mallalieu in the other place, but she made a compelling argument which totally undermines the need for this clause. Again, that is a matter for further debate.
Two further matters that concern me are the youth justice provisions and inferences drawn from an accused's silence. As we know, the old system of cautions for youth has been abolished. Earlier, I listened to the thoughtful, interesting speech of the hon. Member for Lancaster and Wyre (Mr. Dawson) who, obviously, is an expert in this area. I accept what he says.
For some time, I practised in the juvenile courts. Often a youngster would be admonished while he chewed gum or laughed, knowing that nothing real could come of it in any event. Sometimes the young person concerned would have breached bail and perhaps broken into 12 or 15 cars the previous week even while on bail. Nothing could be done to redress the ever-descending spiral into criminality. The Bill provides a welcome step forward and it would be wrong of me to say otherwise.
There is now an attempt to tackle the root cause of the problem. It may be that the parents are not being supportive or that the young person is not being set any kind of example in life. Those and many other factors may be examined by the youth offending team under the regime suggested in the Bill. The provision is most welcome. Family group conferences in New Zealand and Australia, and Scottish children's hearings, about which we have heard at length today, contain useful tips on ways forward. I hope that that part of the Bill will come to fruition very shortly because there is nothing worse than seeing a young person on an inexorable slide into a wasteful and hopeless existence. I welcome the provision most sincerely.
We must not lose sight, however, of the main aim of ensuring that a young person gains better understanding of what society demands and how he or she plays his or her role in it. The framework—at least of the part of the Bill concerning youth justice—gives considerable cause for optimism, and I am encouraged by it.
As everybody knows, the European Court of Human Rights found against the Government in the case of John Murray v. the United Kingdom, which concerned inferences drawn from the silence of the accused. Drawing detrimental inferences from a failure to answer questions breached article 6 of the European convention on human rights given that Mr. Murray had no access to legal advice and assistance. I have no doubt that the Government should, in due course, look favourably on an amendment that ensures that inferences are drawn only if legal advice was available during, as well as before, an interview. I hope that such an amendment commends itself to the Government.
Substantial and important areas of the Bill ought to be improved. I am encouraged by the Home Secretary's comments on reasonable debate in Committee. Hopefully, 422 areas of the Bill will be improved as a result. Problems with regard to article 6 will no doubt be debated fully. Of necessity, I have concentrated on my concerns. I do not wish to seem churlish; the Bill has many good parts. There is much common sense in it, and much to commend it. I hope that concerns can be addressed, because I, along with others, have very grave and sincerely held reservations about some parts of the Bill.
§ Angela Smith (Basildon)
I appreciate the opportunity to speak in this debate which, so far, has been very interesting. I am pleased to find widespread support across the Floor of the House for the principles behind the measures on youth justice. I shall address two areas. One is youth justice—I particularly support the proposals on restorative justice for young people—and the other is the proposed support for vulnerable witnesses.
Nowadays, there is far greater awareness of youth crime, and of the need for a far more intelligent and sustainable response and approach to reducing offending and re-offending. Unfortunately, such attention on youth crime brings with it a danger, as my hon. Friend the Member for Don Valley (Caroline Flint) has emphasised. As the degree of youth crime is brought home to people, there is a danger that everyone starts to think that all young people are involved in crime.
I have been greatly encouraged by the extent to which young people in my constituency are concerned about crime. I arranged a series of youth surgeries in which I met young people and addressed their concerns. At every surgery, young people themselves raised the issue of crime and youth crime. They feel that young people's reputation is being undermined by those who are involved in crime. We should be careful to acknowledge that young people may also be the greatest victims of crime. Indeed, many see themselves as victims and not perpetrators.
In the late 1980s and early 1990s, there was an emphasis on reducing crime through harsher punishment. There seemed to be a belief that punishment was the best deterrent, and, the harder the punishment, the greater the deterrent, yet youth crime grew and there were fewer convictions—more crime, but more people getting away with it. Punishment is a deterrent to an extent, but certainly not on its own. It is clear that, when young people become involved in crime at an early age—often in the pre-teenage years—the surest and most effective way in which to encourage them away from crime is to intervene as soon as possible.
When I use the term "crime", I include what some people wrongly refer to as petty crime and vandalism, which has a great impact on people's lives. Reparation orders in the Crime and Disorder Act 1998 aim to get those who offend to understand the consequences of their crimes and the impact that so-called petty crime and vandalism can have on its victims—whether individuals or communities.
Parts of my constituency—like those of all hon. Members—suffer badly from vandalism, but I am convinced that realising and appreciating the distress, hurt and anxiety caused would act as a deterrent. I am therefore pleased that the measures in clause 8 on youth offender contracts address the needs not only of offenders—in ensuring that they understand the consequences and impact of their action—but of victims.
423 One measure in clause 8 establishes mediation sessions between the victim and the offender. We must accept that such sessions will not be suitable in all cases. I hope that the Minister will confirm that they will take place only with the consent of the victim. Other countries have used mediation with great success. Family conferencing in New Zealand has been mentioned. About 10 years ago, Germany and Austria introduced such sessions originally just for juveniles, but have extended the process to adults. The French Government are assessing how victims respond to mediation; the initial response is excellent.
We must never forget that victims' rights and needs should be addressed in their own right and not just as an adjunct to criminal justice policy. The proposed measures strike the right balance. In proposing any criminal justice policy, we must ask ourselves what victims want. I have spoken to a number of victims of crime, and it is clear that, whatever their views on criminal justice policy—they all want justice to be done and the offender to be caught—the most important thing to them is never to be a victim again. The emphasis on cutting re-offending, in this Bill and in the Crime and Disorder Act, is so important. I pay tribute to the Government's crime reduction programme, which considers repeat victims of crime and provides communities with resources to improve safety, advice and support to ensure that repeat victims do not continue to be so.
The proposed youth offender contracts take positive action to lead young people away from crime. Examples in the Bill include stopping young people associating with certain people and cutting truancy. That will not be that easy to enforce, as youth offender panel members will appreciate. A great deal of good will and work will be required of them.
I should like to quote a senior social worker, who spoke at a conference on restorative justice—at which I also spoke—during the passage of the Crime and Disorder Bill and following the publication of the White Paper. She said:This is the approach I've been waiting for all my professional life.She is not a politician; she operates at the sharp end and knows how important it is to deter young people from committing crime. She is one of the people who will make this legislation work—and it must work.
One aspect of the proposed youth offender panels that is particularly welcome is the locking into the system of parents or guardians. A parent or guardian, or, if the young person is in care, a representative of the local authority, is required to be present in court. Will the Minister comment on the fact that, at the moment, far too many young people initially attend court without a parent or guardian, resulting in delay of the case until a responsible adult is present? What happens if the responsible adult or parent does not accept his or her responsibility to attend a youth offender panel? Can they be forced to attend, or will another responsible adult be appointed to do so? It will be very difficult to enforce a youth offender contract without the support of a parent or guardian.
I am not being picky about such an essential element of the Bill, but I am concerned at the small number of cases that could arise where a parent or guardian will not 424 act responsibly because he or she is unwilling or unable to do so—which might be why the young person has offended in the first place. Young people whose parents are not able to take responsibility, for whatever reason, need even more support in turning away from crime than those whose parents are able and willing to do so.
I also welcome the measures to deal with vulnerable witnesses and victims of crime. Some time before I was elected as a Member of Parliament, I was marginally involved in the case of a young child who had been raped by a member of her family. It was an extremely distressing case, which brought home to me the inadequacies of the adversarial court system, especially for young witnesses and vulnerable witnesses.
I should inform the House that I am the vice-chair of the parliamentary Voice group. Hearing at meetings of that group adults with learning difficulties who have suffered abuse tell of their court experiences brings home to one how vital are the measures in the Bill to deal with this problem. I am sure that I do not need to give the House examples. It was extremely distressing for some of the people involved to report their case to Members of Parliament.
I am aware of cases in which vulnerable adults have been sexually abused and the case has not even reached court because the CPS has fears about how the victim will be treated and how he or she will react in the witness box. The system has to change, and the Bill goes a great way towards changing it. I commend my hon. Friend the Minister for introducing the proposals. Obviously, no one would argue for a reduction in the degree of proof needed for conviction, but the Bill addresses some of the issues surrounding vulnerable witnesses, and they are warmly welcomed.
I have raised with my right hon. Friend the Home Secretary in parliamentary questions the fact that there must be adequate training for all those working in the court system to ensure that they understand the needs of those with learning difficulties. I welcome those provisions in the Bill. They are, of necessity, very wide-ranging measures, and proper training will be essential.
I also welcome the humanisation—if there is such a word—of the courts. For many people—not only those with learning difficulties but children and those who are in court for the first time—the atmosphere and procedures can be daunting, intimidating and frightening. It may seem to some a minor matter that the court officials and the judge should remove their wigs and gowns, but I believe that that will assist many people in giving evidence, demystify the proceedings for those who are nervous and improve the quality of evidence in some cases. The fact remains that many victims and witnesses are far too frightened to give evidence. That fear allows criminals to get away with it. Anything that can be done to protect the witness or victim, while also protecting the right to a fair trial, must be done.
I should like to raise with the Minister a few concerns about the Bill. They are minor when compared to the scale of the improvements, but I ask my hon. Friend to consider them as further improvements or clarifications that can be made later in the passage of the Bill. I am not clear why special measures should be available to witnesses under 17 and not to witnesses under 18. I am also concerned that the way in which clause 16(1)(a) is drafted does not 425 clarify the Government's intent. It does not make it entirely clear that adults with moderate learning difficulties are included. I do not believe that it is the intention to exclude them and I shall be grateful if my hon. Friend will make that clear.
From my experience of talking to victims, it is clear to me that many rely heavily on their carers. Can we make it clear whether relatives and carers can support witnesses in court when expressing their own views, and when appropriate? An example was mentioned to me personally by a young adult in court. An individual's disability may extend to a speech impediment that can make it difficult for them to be understood by those who are not used to their speech. In that context, carers could assist the court and improve the quality of evidence.
I am sure that my hon. Friend is aware that there is concern that the special measures available to the courts will be allowed only at the discretion of the court. I believe that the legislation is framed the right way round in that the court will have to apply not to use those measures, but my concern is that leaving it to the court's discretion could be a deterrent to some witnesses. Unless the witness has confidence that special measures will be available, they may be reluctant to come forward. In rape cases, for example, a defence lawyer may challenge a woman's right to such protection. Whether or not the lawyer is successful, women may not want to go to court—as often happens now—as they will remain unsure how they will be treated in court.
§ Angela Smith
My hon. Friend reinforces the point that I have made and want to develop. Special measures such as screening the victim from the accused and giving evidence by video link —I would say that live video link was appropriate—and clearing the court while the victim gives evidence are all excellent in that they enhance the protection of the victim without being detrimental to the right of the accused to a fair trial. Will my hon. Friend the Minister consider the suggestion that those who report sexual offences could automatically receive the protection unless they did not want it? I fear that, without an automatic right, some women will be deterred from going to court—the very thing that the Bill is trying to avoid. The lack of an automatic right could also lead to different rights in different courts. Again, uncertainty about whether protection will be available could be a deterrent. Failing that, we need to give clear guidelines to courts so that women can be clearly assured that they will get protection. As my hon. Friend the Member for South Swindon (Ms Drown) said, uncertainty may deter women from taking their case to court.
I greatly welcome clause 40, which restricts questioning about a victim's past sexual history. However, some concern remains about how such questioning could ever be relevant. The fact that the court has leave to allow such evidence to be submitted could also be a deterrent to being prepared to go to court. I was pleased to hear my right hon. Friend's assurances on the matter earlier, but I am not sure that they went far enough to reassure all victims. If he will not consider that leave to allow such 426 evidence should be omitted entirely, I hope that guidelines and strict instructions to the court will be made to protect victims.
The right hon. Member for Berwick-upon-Tweed (Mr. Beith) gave the example of previous allegations of rape made by the same alleged victim. I hazard that that is an issue not of sexual history but of criminal actions and criminal history, and that that would be appropriate to raise.
There can be no doubt that the Bill enhances youth justice and introduces many criminal evidence measures that will be warmly and widely welcomed. I have been surprised at the number of letters and telephone calls that I have had from constituents on this issue. The correspondence was warmly supportive of the Bill. As all hon. Members will know from going about their duties in their constituencies, it is with issues such as these that our constituents want the House to deal.
I believe that the Bill will lead to a far fairer system, improve access to justice for victims and address the central issue of getting young people away from crime. I welcome my right hon. Friend's comment that the Bill is good but not perfect. I think it is excellent, but I hope that we can see some improvement in it. I commend it.
§ 4.7 pm
§ Mr. Robert Syms (Poole)
It is a great pleasure to contribute to this debate on an important subject. Youth justice is a high priority for all political parties. If we do not get it right, the collateral damage to society can be tremendous. It is right that the focus of the Bill is on first-time offenders. It is a fact that 80 per cent. of people who commit offences do not do so again. Nevertheless, there is still substantial room for improvement. The measures to set up youth offender panels have to be welcomed, but I agree with my hon. Friend the Member for Ryedale (Mr. Greenway) that the prescription that every young offender has to go through the procedure, bearing in mind the resource implications, needs to be looked at. In certain instances—my hon. Friend set out a number—it might not be appropriate to tie up resources on someone who has fallen into bad company and committed an offence but who has a good record, when the focusing of resources on other individuals would have a far greater effect.
I agree with my hon. Friend the Member for Ryedale that the establishment of youth offender panels will be rather a long haul. We have pilot schemes and it will take quite a while to get the panels system up and running. There are serious resource implications, and I hope that the Government will address them.
The thinking behind youth offender panels is good. I know that there is something of a fashion for restorative justice, but it is in any case a good principle. John Braithwaite, an American criminologist, has written a number of books and articles on it. We have heard about the New Zealand experience, where people went back to the Maori inheritance to deal with youths. The Home Secretary mentioned the experience of Scottish children's panels. All those ideas can be adapted to our youth justice system. Making restitution to victims has to be a key factor, as has reintegration into a law-abiding society. The way in which many young people are brought up—unfortunately, many come from broken homes—means that it is important to reintegrate them into a law-abiding 427 society. Taking responsibility for behaviour must be an important part of learning to lead a law-abiding life. All such approaches are to be commended.
I am extremely pleased about the measures to involve parents and keep them involved. That must be a key factor in ensuring that a young person who has gone off the straight and narrow returns to responsible life. Such involvement is also important for the parents; the most surprising thing about modern life is that, sometimes. parents are not aware of what their children are getting up to. In Dorset, we ran a scheme in which the police picked up young children carrying alcohol and took them back to their homes still carrying the alcohol. In that way, parents were made aware that their 13, 14 or 15-year-old child had been out drinking, sometimes having taken alcohol from their home. The scheme has been pretty successful because parents who think that their young child does no wrong have had to address the fact that their child was out—perhaps up to no good—mixing with others and drinking alcohol. That is one way of confronting parents and their involvement is most important.
Another important point is that the views of victims may be sought, although only with their approval. One of the weaknesses of our criminal justice system is that victims often feel totally uninvolved in what goes on after a crime and are sometimes surprised by the decisions of the Crown Prosecution Service. Under the measures in the Bill, if victims are amenable, they can give their opinions as to what happens to the young offender. That is important not only for the young individual, but for the victims, because they will have some involvement in what happens after what may have been a most traumatic event.
Young people are the key to achieving a law-abiding society, and any investment that we make will be well worth it; the savings will be phenomenal. There are many concerns in society. In 1992, when I was a prospective candidate in Walsall, North, one of the experiences that surprised me was that kids on a new estate were going round ringing the doorbells of elderly residents. Even at that level, great distress can be caused to elderly people. If we can catch people, especially at the time of their first offence, it will be a major improvement, provided that the response is not too prescriptive and that we put in enough resources to make the measures work. There is a degree of flexibility in the proposals for the orders—between three and 12 months—and that is to be welcomed. The conferences on progress are also welcome. A reasonable plan might be set out at the beginning of the process, but things might turn out differently. The fact that the referral order or contract can be varied is important.
The public must have confidence in our youth justice system, and I hope that the measure will assist in that. It is a key area for the future and I welcome the youth offender panels, but with the concerns that I have expressed.
I listened carefully when the hon. Member for Meirionnydd Nant Conwy (Mr. LIwyd) expressed his concerns. I share the concerns about pre-recorded evidence; video conferencing links are good, and the fact that they are live is an important factor. I hope that the Home Secretary's earlier comments that he will be responsive to debates in Committee will apply to that matter; it is one that we must consider carefully.
428 In relation to cross-examination by unrepresented defendants, we heard of some appalling cases of witnesses being treated badly. However, 1 still have reservations about whether two or three extremely public and widely reported cases should mean that the rights of other people, some of whom may have cross-examined and been acquitted, should be trampled on. We are considering taking away the rights of defendants, and that needs careful examination.
§ Angela Smith
I accept the point made by the hon. Gentleman in relation to those two cases, and that we might be taking a sledgehammer to crack a nut. However, in those cases, the women who had been raped were cross-examined by their alleged rapists. Does he not accept that that is a deterrent to other women to report crime and go to court?
§ Mr. Syms
I accept what the hon. Lady says. They were appalling cases and no one would have any sympathy with what happened. However, there may be other means of controlling such matters. The hon. Member for Meirionnydd Nant Conwy spoke about judges briefing juries on procedure, and that would be beneficial.
§ Mr. Edward Leigh (Gainsborough)
In respect of the intervention by the hon. Member for Basildon (Angela Smith), does my hon. Friend acknowledge that the Court of Appeal in the Ralston Edwards case made it clear that the judge had full power to take authority and to take command of such a situation so as to prevent the unacceptable treatment of a complainant? The Court of Appeal made a firm judgment after that very bad case.
§ Mr. Syms
I thank my hon. Friend for those comments. The matter was certainly considered. Nevertheless, we must still be careful and the matter must be discussed in Committee. As has often been said in this debate, there are questions of balance. I have not come to a firm conclusion, but the matter must be tested in Committee. It is easy to use public examples of appalling cases to change the law and affect the rights of thousands of people about whom we never hear.
My final point is on press restrictions and clause 43. My hon. Friend the Member for South Cambridgeshire (Mr. Lansley) asked whether the blanket ban was overdoing it and whether such a ban conformed with the European convention on human rights. There are concerns about that blanket ban in Fleet street and it is another matter that must be considered in Committee.
I welcome most of what is in the Bill. We must test the proposition put forward earlier by the Home Secretary so that we ensure that the balance between the needs of victims and defendants is correct. I am sure that at the end of the process we shall make good progress and have a better Bill.
§ Mr. Harry Cohen (Leyton and Wanstead)
I agree with my hon. Friends and with some other hon. Members that this is a fine Bill. I welcome it; I welcome the youth justice provisions, which follow up Labour's election pledge to deal effectively with persistent young offenders. It adds alternatives to custodial sentences to give such 429 young people future lives free from crime. The measures on witness protection are especially welcome; it is most important to convict the real criminals.
I want to concentrate my comments on sexual offences, especially rape cases, which are dealt with in the Bill. In 1992, I introduced the Sexual Offences (Amendment) Bill with the support of the organisation Women Against Rape. That Bill pressed for the wholesale reform of the rape laws and achieved some success. Following its introduction, case law made rape in marriage a crime; that had not been the case for centuries. That was welcome. Male rape was accepted as a criminal offence for the first time. However, many matters such as consent, or non-consent—especially in relation to rape—were not addressed. I welcome the fact that the Bill begins to address those matters.
Witness support for complainants in sexual offence trials is a welcome measure. Witnesses can be screened from the defendant; they can give evidence on live television link; or the court can be cleared while they give evidence. Unrepresented defendants will be banned from personally cross-examining complainants in sexual offence cases. The examples we heard showed that the victim relived the event; it was like a double rape because she had to endure the experience all over again.
The Government have made a laudable attempt to address the issue of the complainant's sexual history, to ensure that general allegations about the complainant's sexual history that are made purely to attack her credibility will no longer be allowed. The violence of rape is intolerable and is in no way mitigated by the victim's past sexual history—that has nothing to do with the violence that is rape. I note that the Government's "Speaking up for Justice" report, which was published last year, cited a study showing that judges allowed up to 75 per cent. of defence applications to question the victim about her sexual history in a waythat seems to go far beyond that demanded in the interests of relevance and … fairness to the defendant.That is a clear reason for action.
At this point, I wish to return to an issue that I raised in an intervention during the opening speech of my right hon. Friend the Home Secretary—his assumption that there would be less chance of court prosecutions succeeding in rape cases than in cases relating to other offences. I do not understand why that is necessarily so. Already, the Crown Prosecution Service goes through such cases with a fine-tooth comb before they even get to court, and many cases that should reach court do not do so because of that practice. To assume that the cases are less likely to succeed in court is a double block on obtaining successful prosecutions. We need to challenge such basic assumptions, for they are one reason why only one in 200 rapists is ever convicted—a worrying statistic, which the justice system needs to address.
The loopholes in the Bill cause me concern, especially those concerning women's sexual history, such as the 24-hours provision, which relates to the complainant's relations with other men. In December, I wrote to the Minister of State on the subject of the consensual behaviour of the complainant with someone other than the accused, if it occurs within 24 hours of the alleged offence. I said that I acknowledged the purpose of the provision, but askedwhy should the complainant's sexual behaviour with someone other than the defendant in this time period be deemed to be relevant?430 In January, my hon. Friend replied, saying:The defendant may wish to say in his defence that he had consensual sex with the complainant shortly before or after the alleged rape and that the incident which the complainant now alleges was rape, was equally consensual.I can understand that, but my hon. Friend went on to say:Or the defendant might have evidence which shows that the complainant had (consensual) sex with someone else shortly after the alleged rape. It would be wrong in the Government's view to prevent him from adducing evidence of this, or asking questions about it, in such circumstances.I think that whether the complainant had sex with someone else is absolutely irrelevant. The issue on trial is what the accused did or did not do to her.
§ Mr. Cohen
I do not agree with that. As I tried to establish through my 1992 Bill, the issue is purely one of whether consent is given or not given—if consent is not given, the act is rape. Whether or not the woman is promiscuous is irrelevant; if she has not given her consent, it is rape.
We must not accept the argument—and it should certainly not be used as a legal defence—that a woman having sex with another man, or even flirting with other man, somehow implies her consent to sex with the accused man. In Michigan in the United States, the law has been altered: except in cases where the identity of the accused is at issue, it allows evidence of sexual history only with the accused, but with no other man. I believe that that is the right way forward. In some cases, a jury needs to know if the victim and her alleged attacker have had a sexual relationship—it might explain how they came to be together on the occasion of the alleged rape—but questions about sex with other men are never relevant, serving only to demean and humiliate the victim, attack her character and divert attention from the facts of the rape. We should consider adopting the Michigan approach.
I am concerned that the Bill still allows legal credence to be given to an unreasonable belief on the part of the accused that consent had been given. In the other place, Lord Thomas of Gresford said thatin almost every case where the defence is one of consent, there will be an additional defence that, even if the complainant did not consent, the defendant reasonably believed that she did consent. The two defences almost invariably run together.—[Official Report, House of Lords, 8 February 1999; Vol. 597, c. 51.]Lord Goodhart said:English law has gone wrong in allowing unreasonable belief as a defence to a charge of rape."—[Official Report, House of Lords, 23 March 1999; Vol. 598, c. 1213.]We should not give credence to an unreasonable belief.
The Government's women's unit wrote to Women Against Rape on that subject, saying that the Home Office view was that:For example, a defendant might claim that he believed the complainant was consenting because he had been told that she always kicked and screamed during sex. This would be relevant to his honest belief.431 That is not a reasonable view—it is the rough sex defence, which has been used repeatedly and quite unjustifiably in many rape cases. We know that a small minority of people engage in sado-masochistic practices, but it is dangerous to allow such a legal defence to be used in rape cases. The rough sex defence is only an easy excuse for non-consensual, violent rape.
§ Mrs. Teresa Gorman (Billericay)
Does the hon. Gentleman agree that, if a woman decided that her best protection was to remain passive, she might be accused during the course of the trial of having consented, simply because she did not resist?
§ Mr. Cohen
That is a good point. That is why we have to come to terms with what does and does not constitute proper consent in such circumstances.
The other loophole that causes me concern is that defence banisters could still bring in evidence of behaviour "similar" to the woman's behaviour at the time of the alleged rape. That appears to give very wide scope—let me give one example. A complainant who goes to nightclubs regularly might be asked by a defence barrister whether she picks up men at those nightclubs and has sex with them. If she answers in the affirmative, that information could be used to justify the similar behaviour argument in the rape case. That is clearly unreasonable, and the clause concerns me.
It was suggested in another place that judges should give a mandatory warning that past consent with the accused does not imply consent every time. I think that that is the correct move. For example, in the case of rape in marriage, although consent would almost certainly have been given in the past, it does not mean that consent was given in the case of a brutal assault —and judges should make that point.
§ Ms Drown
I agree with my hon. Friend that accounts of the sexual history between the witness and the defendant should be limited. Does he accept also that sexual history is not always relevant? We cannot say that a husband can never rape a wife when we know that, unfortunately, that happens too frequently.
§ Mr. Cohen
My hon. Friend makes a very good point. Although a couple may have had a mutual consenting relationship, it does not mean that rape cannot occur subsequently. We should not offer a legal defence to the opposite effect and I believe that we should consider introducing a mandatory judge's warning in such circumstances.
I think it is right to prevent the defendant from cross-examining the witness, as that is akin to a double rape. However, it is possible that defence banisters could be more aggressive, ruthless and clinical in cross-examination. We must address those issues in the law in order to protect the complainants—particularly the women—involved.
I have concentrated on the areas that require further consideration, but my criticisms do not detract from my earlier comments. This is a fine Bill in many respects and, like my colleagues, I welcome the Home Secretary's 432 admission that he has an open mind when it comes to improving the legislation. I hope that he will consider some of my suggestions in that regard.
§ Mr. Douglas Hogg (Sleaford and North Hykeham)
I must declare an interest in the debate as I am a banister practising in the criminal courts and may be involved in rape cases. I support the opening remarks of my hon. Friend the Member for Ryedale (Mr. Greenway), who said that this is an important Bill. It makes substantial changes to evidence in the criminal law, and I shall focus on that section of the Bill rather than on the first part.
I must make a general point in response partly to the comments of the hon. Member for Leyton and Wanstead (Mr. Cohen) and partly to the remarks of the hon. Member for Basildon (Angela Smith). I listened to their contributions, and I got the impression that they were inclined to lose sight of a very important fact: the House must safeguard the interests of defendants. It is perfectly true that we must ensure that witnesses and complainants are not subjected to greater trauma than need be. Obviously, it is a disagreeable experience to appear in court, to give evidence and to be cross-examined and one does not want to make that still more difficult. We also have a public interest in ensuring that complainants come forward, for all the reasons that hon. Members have advanced.
However, at the end of the day, the most important person in a criminal case is the defendant—especially when he is facing a serious charge such as rape and when, if found guilty, he will probably be sent to prison for a long time. The House must be sure that nothing that we do to address the legitimate concerns of complainants or witnesses detracts from the fairness of a trial. That general point underpins the particular issues that I shall raise.
I oppose the prohibition, in clause 33, of a defendant's ability to cross-examine in cases involving sexual offences. We must recognise that the situation contemplated seldom arises. That is not surprising, as most defendants choose to take advantage of legal aid, which is generally available. Most defendants assume—probably correctly—that a lawyer will do a better job than they would. However, a number of defendants, although not many, who do not like lawyers—I am not particularly critical of them for that—or who conclude that they would do a better job than a possible representative choose to conduct their own cases. In the great generality of criminal cases—there are one or two exceptions—a defendant has that right, and we should be very slow in a democracy to deny a defendant the right to conduct his own case. We should do so only if there is an absolutely compelling reason to justify that decision.
At the same time, we must be conscious of the possibility of abuse. We must recognise that abuse has occurred in the criminal courts. The Home Secretary—or perhaps the right hon. Member for Berwick-upon-Tweed (Mr. Beith)—referred to the cases of Ralston Edwards and Milton Brown. However, the fact that only two cases are in hon. Members' minds, emphasises the rarity of such abuses. As my hon. Friend the Member for Gainsborough (Mr. Leigh) and other hon. Members pointed out, the case involving Milton Brown went to appeal and the Court of Appeal spelt out the powers of the trial judge. The trial judge has a robust power, which he or she is encouraged 433 to use, to intervene in order to prevent an improper exercise of the right of cross-examination by the defendant.
The Court of Appeal heard that case in May 1998 and, so far as I am aware, there have been no further cases of oppressive cross-examination by defendants. I think that it is premature to conclude that the Court of Appeal's advice to trial judges is not effective. Therefore, I conclude that it is wrong at present to remove from the defendant the right to cross-examine in sexual offence cases. I might come to such a view in the future if trial judges do not heed the advice of the Court of Appeal, but I believe that they probably will do so.
§ Mr. Leigh
It is not just a matter of defendants—who face possibly 10 years in jail—having an ancient right to cross-examine their accusers. Will my right hon. and learned Friend comment on the point made in another place that there are many more acquittals in rape cases these days because there are many more prosecutions for marital or date rape? In those circumstances, a defendant may have perfectly good reasons for wanting to cross-examine the complainant and put his case directly to his ex-wife or ex-girl friend.
§ Mr. Hogg
My hon. Friend is probably right. Consent is the difficulty in cases of date rape or rape within marriage. When a consent has undoubtedly been given on previous occasions, it will take a great deal to persuade a jury that the consent has been withdrawn. Therefore, I agree with both parts of my hon. Friend's intervention.
I revert to the point that I had in mind on clause 33. The Home Secretary made the point—I understand it entirely—that the court has the power to appoint a legal representative to cross-examine on behalf of the defendant thus disfranchised. However, I do not regard that as a sufficient solution. To start with, a defendant who has been obdurate on the appointment of a legal representative in the first instance may well not be very co-operative when it comes to giving instructions to the legal representative who has been appointed by the court. In parenthesis, we need to keep in mind that the Bill provides in terms that the legal representative is not responsible to the defendant. That is the language of the Bill.
We may well find that the defendant will not give instructions—[Interruption.) The Minister of State shrugs, but he should not. The idea that the legal representative can necessarily gain a proper sense of the defence from the papers is an illusion. That is especially the situation if the defendant has declined to answer questions during the interview process, as might well be the case. I am sure that that is within the knowledge of the Minister of State, and certainly it is within mine. In that event, the legal representative instructed by the court on behalf of the defendant will not be able to put the case with any degree of clarity.
If we deny to the defendant the right to cross-examine in those cases, we are creating the risk of unfair convictions.
§ Ms Margaret Moran (Luton, South)
The right hon. and learned Gentleman is making an extensive case for cross-examination and self-representation. Does he accept that, in certain cases involving criminal sexual activity— 434 especially incest, including the sexual violation of daughters—the right of self-representation does not exist? The Bill will merely extend that practice.
§ Mr. Hogg
It will more than extend it because the Bill would extend it dramatically. The hon. Lady is right to say that there are some cases where the right of self-representation is restricted. However, we are thinking about a dramatic extension of that practice. That applies to clause 33 and 34. The reservations that I have expressed about clause 33 extend inevitably to the process that is contemplated in clause 34, which is to build on the precedent referred to by the hon. Lady and to extend it very much further. I am against the prohibition to which I have referred.
§ Ms Beverley Hughes
I accept that the right hon. and learned Gentleman is raising some valid issues that are difficult to weigh in the balance. In trying to weigh those issues, will he accept that the main function of the court is to establish the truth and to administer justice? If the ability of a witness and a victim to tell the truth and to give full evidence in court is jeopardised by being cross-examined by her alleged assailant, that is of essential interest to the court and should carry more weight than at present the right hon. and learned Gentleman is giving to it.
§ Mr. Hogg
The answer to the hon. Lady's question is that I do not agree with the underlying assumption. The purpose of a criminal court is to ensure a fair trial, which is not quite the same as trying to determine the truth. The process of a criminal court is to ensure that a defendant is not convicted unless the case is proved beyond a reasonable doubt. That is slightly different from the process of determining the truth. In one sense, the phrase "the process of determining the truth" is more akin to the civil standard of proof—on the balance of probabilities—than the criminal standard. I return to the point that the purpose of the criminal court is to ensure that the defendant receives a fair trial, by which I mean that the defendant is not convicted unless the case is proven beyond a reasonable doubt.
I move on to the clause 40 point. I do not support the proposal that would restrict the ability of legal representatives to cross-examine the complainant about sexual behaviour. On that point, I disagree with the hon. Members for Basildon and for Leyton and Wanstead. We need to keep in mind that there is already a restriction within the criminal law that is imposed by section 2 of the Sexual Offences (Amendment) Act 1976. In effect, that restriction prevents, without the leave of the judge, examination or cross-examination of the complainant as to sexual behaviour other than with the defendant. I believe that it is not necessary to extend the existing law or, to put it differently, I do not believe that the case has been made out.
The plain fact, distasteful though it may be, is that, in certain cases, it is both relevant and necessary for the purposes of a fair trial to cross-examine a woman about her sexual background. As one who has had to do it, I can say that it is a very distasteful exercise. It is not something that most advocates embark on lightly. It is an extremely distasteful exercise, most of all for the complainant but also for the advocate, at least for an advocate of any sensitivity. However, there are cases where sexual behaviour is relevant—for example, cases involving consent.
435 I disagree with the hon. Member for Leyton and Wanstead. If a complainant has a propensity to promiscuous behaviour, that fact may be relevant to the question of consent. Not only may it be relevant to consent, it may be a matter that should be before the jury. The same consideration incidentally applies to a propensity to particular sexual practices. That, too, can be relevant as to whether the prosecution has proved lack of consent.
§ Mr. Hogg
If the evidence is that, in a particular case, the complainant in a casual way agreed to sex and there was evidence that, on many other occasions, she was inclined to do that with people she did not know well, that is a fact that should be before the jury. The jury might well conclude that, in the particular case, that is what happened.
§ Mrs. Gorman
Does my right hon. and learned Friend agree that, in other criminal prosecutions—for example, for assault or burglary—the crime of which the defendant is accused is dealt with in its own right? It is not linked to the history of the individual. Other aspects of his conduct are revealed only after sentence has been passed. Why, then, is a woman's history relevant to the case in point?
§ Mr. Hogg
My hon. Friend is muddling two principles. I am sorry to say that, as I do not wish to be unfair to her. She is speaking about the position of the defendant. As a general proposition, the antecedents of a defendant cannot be brought before a court, but as a general proposition, the antecedents of a witness other than the defendant can. The exception that is being argued for is an exception in favour of the complainant in sexual offences cases, which would take them out of the general pattern of the criminal law.
I have been arguing that there are cases involving consent where previous conduct is material, but there may also be other kinds of cases where it is material. For example, in a case where the complainant has undoubtedly had sexual intercourse within the relevant time frame and where there is forensic evidence to substantiate that, but the defendant asserts that it was not him but somebody else who had sexual contact, it must be right to be able to adduce evidence by 436 cross-examination or otherwise to support that assertion. I accept that the Bill does not positively prevent that, but it makes it substantially more difficult.
§ Mr. Boateng
Will the right hon. and learned Gentleman explain how the issue of promiscuity is relevant to consent? Is he saying seriously to the House in this day and age that someone who is promiscuous does not have the right to say no?
§ Mr. Hogg
As the Minister has some difficulty in accepting the proposition from me, perhaps he will accept it from the Lord Chief Justice. I quote from the Second Reading debate in the other place, in which the Lord Chief Justice said:The simple truth is that on an issue of whether a complainant consented to sexual relations with the defendant, the fact that the complainant has behaved promiscuously on other occasions outside the window of 24 hours before and after the commission of the offence may well—I emphasise 'may well'—be relevant"—[Official Report, House of Lords, 15 December 1998; Vol. 595, c. 1272.]
That is all that I am saying, and those are the words of no less a person than the Lord Chief Justice when the matter was debated in the other place, so the Minister had better be a bit chary of dismissing those views with the alacrity that he has shown.
I shall touch on two other points which both relate to part II. Again, I make the point that the purpose of the criminal law is to be fair to defendants. We are in the business of ensuring that defendants get a fair trial. We must be extremely cautious before the House lends itself to a process that undermines the fairness of a trial.
I want to say a word about special measures and eligible witnesses. I understand full well the Government's concern—not an unworthy concern—to ensure that eligible witnesses as defined in the Bill can, in certain circumstances, receive special protection. I disagree with the hon. Member for Basildon who suggested that that should always be made available. On any view, it should be a matter for the discretion of the trial judge.
We should understand that special measures—for example, the erection of screens or an order requiring the court to be emptied can work to the prejudice of a defendant. Such orders can create an atmosphere that is prejudicial to the defence, because, by implication, they suggest to the jury that there is a risk of intimidation.
Video links are another example. I am not against all video links; there are cases in which they are appropriate. In many cases, however, they are not helpful. The immediacy of direct cross-examination is lacking. Hon. Members have only to reflect on how they watch the proceedings of the House on the television screens in their offices, and they will know that that lacks immediacy. Moreover, once the principle of video links is established, that emphasises the vulnerability or the sensitivity of the complainant or the witness. That may be appropriate in some cases, but we must not lose sight of the fact that the measures can work to the prejudice of a fair trial of the defendant.
437 I am not saying that we should not have the special measures; I am saying that, in Committee, that part of the Bill needs to be looked at critically from the perspective of the defendant. The Committee should ask itself whether the criteria should be more rigorously defined and whether the presumptions should be tilted against the party that makes the application for the special measures direction.
On video-recording of cross-examination, by definition, that cross-examination takes place before the trial. We are not talking about cross-examination through a live line, which the hon. Member for Meirionnydd Nant Conwy (Mr. Llwyd) mentioned, which is also the subject of a special measures direction, but is different from what I talk about now.
It is a small point, but I hope that the House will keep it in mind. The Bill contemplates the possibility of cross-examination by a person other than the legal representative of the defendant. On the face of it, I find that difficult to countenance. The following point is much more important. I am glad to see that the Home Secretary is now present. It is always nice to see him, but it is particularly nice at this point. I was talking about cross-examination on a video before the trial, the point on which I intervened during his speech.
In principle, I am against that for the following reason. Until a case is under way, one has heard the evidence and seen the parties, it is extraordinarily difficult to be absolutely certain what the issues will be. The Home Secretary referred, fairly, to primary and secondary disclosure. That will sometimes make clear the relevant issues, but it will by no means always do so. I have been involved in many a case where I thought that point A would be the bull point, but it turned out to be largely irrelevant and what mattered was a different point. In the great majority of cases, that fact does not become apparent until the case has got under way and has been going for a while.
I accept that there are provisions in the Bill that enable further cross-examination to take place, but, as the Minister is aware, the criteria for allowing that further cross-examination is very tightly defined. There is no need for the provision, especially as there is the proviso in favour of the live link. It is positively undesirable. I hope that, in Committee, the provision will be struck out.
I am conscious that I have occupied more of the House's time than I had wished. I fear that, in their concern to protect complainants and witnesses—a wholly legitimate concern—the Government run the risk of undermining the fairness of our criminal system. Some parts of the Bill—certainly those to which I have drawn attention—are likely to prejudice a fair trial. I hope that those matters will be carefully considered in Committee. If the Bill is not changed in Committee, I hope that the Conservative party will have the courage to vote against it on Third Reading.
§ Ms Beverley Hughes (Stretford and Urmston)
I support the Bill in its entirety. I should like to speak on many of its aspects, but I intend to restrict my remarks to part II.
In recent speeches today, some of the critical issues and underlying principles that may divide hon. Members have been raised. The right hon. and learned Member for 438 Sleaford and North Hykeham (Mr. Hogg) identified some of them. I am familiar with the problems of child sexual abuse, which I shall use as an example to draw out some of the important underlying principles of the Bill.
We have heard a great deal about the need to balance the rights of defendants to a fair trial with the needs of victims to put their evidence before the court. That is a valid and complex issue and the balance is not easy to strike. I should like in this context to respond to some of the points made by Opposition Members. What do we mean by a fair trial for defendants? Should they have free rein in court to cross-examine? If the traditional conventions of the courts do not enable an accuser to give the fullest and clearest possible evidence, we cannot say the trial is fair for the defendant or the victim.
§ Mr. Llwyd
The Lord Chief Justice has pronounced on the issue and the jury is out. I believe that there is some consensus. Judges must take heed of what the Lord Chief Justice has said and must observe every aspect of the guidelines very carefully. If they do, there will be no problem of witnesses being intimidated, because the cross-examination will be stopped. That provides equal protection for witnesses and the rights of the defendant.
§ Ms Hughes
I hear what the hon. Gentleman says and I know that he has considerable experience. However, his view is predicated on the assumption that judges will implement what the Lord Chief Justice has said in the way that is envisaged. Judges already have limited provisions to enable children to give evidence more effectively, but they have not been used in child sexual abuse cases to the extent that the cases have demanded. It is legitimate to raise questions about the perspectives that prevail in courtrooms among lawyers and judges, and to consider to what extent we can be assured that the necessary actions will be taken without legislation.
§ Mr. Leigh
I know that I am not going to convince the hon. Lady, because she thinks that there should be a blanket denial of the right of the accused to cross-examine in a rape case, but does she think that there may be exceptional circumstances in which, by leave of the court —and only by leave of the court—the accused should be allowed to cross-examine the complainant? For example, if she is an ex-girlfriend, should he not be entitled to ask her why, in his view, she is telling lies?
§ Ms Hughes
I cannot envisage such circumstances, so I guess that the hon. Gentleman is right to say that I have a different opinion from his on the general principle.
In the criminal justice system, those parts of the process of investigating and protecting children that have to do with prosecution have failed the victims of child sexual abuse and their families. The incidence and prevalence of the offence is much greater than the public appreciate. That is largely because only a small number of such cases reach court and only a small number of those that reach court result in a successful prosecution.
We have made considerable progress in the processes of protecting children when an allegation has been made, and in the multi-disciplinary process of investigation. However, we have not made similar progress in the criminal justice system—in how it decides whether to prosecute such cases, and in how those prosecutions are executed.
439 The advisory committee on video-recorded evidence, which produced the Piggott report in 1989, not only made a raft of recommendations—which have largely been incorporated into the Bill—on dealing with child witnesses, but identified one of the main reasons for the lack of progress in the criminal justice system. The committee believed that lawyers' and judges' perception of, and attitude towards, children's evidence was such that that evidence was not taken sufficiently seriously, and that legal processes have been very slow in adapting to the specific needs of children and of children who have been violated.
In a previous professional capacity, I undertook some research with a small team investigating the nature and incidence across the country of ritual and organised child sexual abuse. As part of the research, we had to examine police and social service records of their investigations of about 20,000 cases of alleged child sexual abuse, which entailed reading the transcripts of children's statements. It was a harrowing experience for my research team. However, even more harrowing was our realisation, after following up those cases, that fewer than 5 per cent. of the cases ended up in court, and that a very tiny percentage of them resulted in a successful prosecution.
I appreciate the views of experienced lawyers who express in the Chamber their concerns for defendants. However, I feel very strongly that, as parliamentarians, we must deal with a wider issue of justice that becomes acutely obvious in cases of child sexual abuse. The figures themselves show that our criminal justice system is allowing most alleged perpetrators to walk free and abuse again. We, as parliamentarians, must therefore ask ourselves whether the criminal justice system is serving the interests of children and of justice. I argue very strongly that, on the basis of the evidence in child sexual abuse cases, the answer is clearly no.
I therefore believe that, as responsible parliamentarians, we have a duty to change the system, while accepting the difficult balances that have to be struck. I accept that it is very easy to make an allegation of a sexual offence, and that it is very important that a defendant should be able to try to defend himself or, occasionally, herself. Equally, we have to recognise that, so far, the balance in cases of child sexual abuse has been tipped strongly in favour of the defendant, and insufficiently in favour of protecting children by the successful prosecution of offenders.
The nature of the issue is evidenced also by the very large number of allegations of child sexual abuse that have been fully investigated—they are not frivolous—and have resulted in prosecutions, but that have been discontinued in court. Furthermore—going back a stage—a high proportion of cases never even reached court, as Crown Prosecution Service solicitors decided that, evidentially, a case would not stand up.
The issue brings us to the heart of some of the Bill's provisions. We have to find ways of enabling children to tell their story to a court in a way that will increase the chances of—on my definition—a fair trial. A trial has patently been unfair if a child cannot provide to the court the fullest and most detailed evidence that he or she is able to give within his or her limitations. I therefore very strongly support the Bill's provision of special measures 440 and eligibility criteria, which will be an essential and fundamental step forward if we really are going to tackle the issue.
It is not only a question of justice for individual children, important though that is. As a society, if we are going to take more seriously the larger issue of child sexual abuse, not only do we have to be effective in protecting children and investigating allegations, but the prosecution process has to be more effective as part of the armoury against such abuse as a social problem.
I support the measures. However, although they are important, they are only a necessary condition for more effective prosecution; they are not, of themselves, a sufficient condition. That is because the measures will be effective only in so far as we can begin to change the attitude of Crown prosecution solicitors and of judges, who must show themselves more disposed to use the measures, to begin to change the culture in court, and to make it easier for children to give their evidence in the interests of a fair and just system.
§ Mr. Roger Gale (North Thanet)
I apologise to the House for the fact that other parliamentary business kept me out of the Chamber for part of the debate, although I have heard much of it.
I wish to refer to a point made by my hon. Friend the Member for Ryedale (Mr. Greenway) on youth offender panels. If we are going down that road, it is extraordinary that the conditions of panels will apply only to first-time offenders. As with any law, it will not be retrospective. However, there will be a cut-off point, so that anyone who may have offended in a minor way before the introduction of the legislation will, effectively, fall outside the net.
I am working on the fond assumption that that will not be by any means a licence for the Bench to release back into the community, against the public interest, young people who more properly ought to be dealt with more severely because of the severity of their crimes. Clearly, that would not be progress.
If the proposal is a good thing—and I take it that most hon. Members believe that, in theory, it is—it surely should be extended to second and even third-time offenders on appropriate occasions, as determined by the Bench. The thrust of the measure is to try to keep very young offenders away from a life of almost institutionalised criminality. If that is to work, the Home Secretary and the Minister of State must look again at this matter in Committee.
I wish to refer to the provisions in the Bill that relate to sexual offences. I am concerned that, once again, the law of unintended consequences may cut in if we are not careful. I listened with great interest and respect to my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg), who, as a distinguished lawyer, knows much more about these issues than I do. My experience is quite simply as a constituency Member of Parliament and my offering is anecdotal rather than legal and experienced, as my right hon. and learned Friend's was.
I wish to give two examples to illustrate my point of view. The first relates directly to my family. When my daughter was small, her aunt—who was then also in her teens—was attacked by two men on holiday at night while 441 leaving a club. She was jumped from behind, strangled, raped and left for dead. Miraculously, she recovered, and I saw her two days after the attack. The bruises on her neck were still vivid, and every single blood vessel in both eyes had burst; her eyes were bright red, as a result of the ferocity of the attack. No one who has experienced that kind of aftermath—and the internal trauma that goes with it—can possibly believe anything other than that rape is a vile crime.
However, one of my first duties as a Member of Parliament following my election in 1983 was to see, at their request, the young wife and mother-in-law of a young man who was detained in Canterbury prison, having been convicted of a rape. They both pleaded his innocence. One might have thought that a mother-in-law would feel quite strongly about a son-in-law who had acknowledged that he had gone out to a nightclub and made love to a woman who was not his wife.
Both ladies convinced me that I should go and see my constituent in Canterbury prison. It was the very first time I had been inside a prison. It perfectly likely that most Members of Parliament, when first elected, will not have had occasion to go into a prison. It is a fairly daunting experience and not one that I would want to repeat, except to visit constituents.
I interviewed my constituent in prison for about an hour and a half and came away with a feeling of grave disquiet. On my way out, the warden said, "Can you do anything for him, Sir?" I asked why and he said, "Because he shouldn't be in here. He is not guilty." Prison wardens are not given to believing that all their charges are innocent.
Prisoners take a fairly robust view of those who are guilty of sexual crimes, especially against women and children, which they find offensive, as we all do. My constituent had never been on rule 43 for his own protection, because everybody in the prison believed that he was innocent. I took up the case and discovered that not only the warden and I but the probation officer were convinced that it was a genuine and serious wrongful conviction. That was 15 years ago, and I am still fighting the case.
It is virtually impossible to get the conviction reversed. The case is currently before the review committee, which is deeply reluctant to reintervene because, frankly, most people recognise that there is very little mileage in being dubbed a defender of rapists. That does not alter the fact that a significant number of people who have been closely involved with the case and have examined the forensic evidence, or lack of it, and seen the clothing that was indubitably tampered with after the forensic scientists had examined it, believe that the man is innocent.
Happily, my constituent's wife stood by him—he now has two fine children and is trying desperately to rebuild his life—but the conviction has stuck with him. Why am I saying all this to the House? Because the demure young lady who appeared in court was not quite the same young lady whom others had seen on the streets of my constituency, enjoying herself in a variety of ways at a variety of times of the day and night. I put it no higher than that. To say that such a person's sexual history could not or should not be allowed as evidence in any future case would, as my right hon. and learned Friend the Member for Sleaford and North Hykeham said, prejudice the course of justice.
442 I am deeply concerned that there is an atmosphere abroad that militates against the defendant and virtually says that the moment a man is in the dock accused of rape he is guilty, and the complainant is automatically a victim. In many vile cases that is so, but not in every case. Members of the Standing Committee should satisfy themselves and the House that, in doing what, in broad terms, we all want done, we are not damaging what my right hon. and learned Friend rightly described as the absolute duty of the court to ensure that the defendant gets a fair trial.
The hon. Member for Stretford and Urmston (Ms Hughes) rightly drew attention to the problem of child sexual abuse. There is another case in my constituency in which we believe that a very young child has been abused. The Crown Prosecution Service cannot proceed with the case because of the child's age, which is under five. That almost inevitably means that the abuser, if that is what the person in question is, will go free.
I urge those who serve on the Standing Committee—I will not, because I will be serving on another-to study the matter extremely carefully and consider giving the courts and the CPS wider powers to use discretion, rather than just assuming that, because a child is below a certain age, he or she cannot give evidence. I believe that, if the Committee can do that, and pay attention to the other issues that my right hon. and hon. Friends and I have raised, it will come back with a Bill that we shall all be able to support on Third Reading.
§ Ms Margaret Moran (Luton, South)
I hope that the House will accept my apologies for the fact that I could not be present at the beginning of the debate, because of unexpected parliamentary business. I have been impressed by the quality and thoughtfulness of that part of the debate that I have been privileged to attend, and it is with some trepidation that I stand up to speak. I know that, as has been said already, the Bill has been comprehensively discussed in another place by many honourable and very learned members of the legal profession, who have raised many important legal points. I shall not cover those myself, largely because I have no legal background.
What I have to say derives primarily from my keen interest in the work of the youth justice system in Luton, where we are testing a youth justice pilot, and from my experience of working with women and children who have been subject to violence and abuse. I am proud to have had the opportunity to meet and talk to the representatives of Victim Support, and to have seen the excellent and valuable work of the Luton witness protection scheme.
I have also seen some of the pioneering work that was the precursor to the youth justice pilot scheme that the Government have introduced, which was carried out by a partnership project involving the local authority, the police, business and the Safer Luton partnership. Some of the work being done in Luton to prevent youth crime leads me to believe that the measures in part I will be valuable in tackling some of the issues that are not at present being addressed.
I recently had the opportunity to see one of our youth courts in action, dealing with a young local offender. The judge asked the lad, "Have you ever appeared before me 443 in court before?" The lad replied, "Dunno. What time do you get up?" That episode summarised the way in which the courts relate to young offenders and confuse both them and many of the other people who participate in the process.
That is why the measures in the Bill that focus on prevention and restorative justice for first-time offenders are so important. The introduction of non-criminal youth offender panels and the involvement of young people in taking responsibility for their actions are both radical and vital if we are to have a significant effect in reducing new crime.
Our experience in Luton leads me to believe that it is crucial that the measures work seamlessly with those in the Crime and Disorder Act 1998. So far, five parenting orders have been issued in Luton. Those have been linked to provision for parenting classes, for which the Home Office has provided start-up grants. In addition, we now have bail support workers and development workers for youngsters who might otherwise have been remanded in custody.
A great deal of work is being done to prevent young offenders from reoffending, but the missing link, as my constituents, especially those in Caddington and Stopsley would say, is a means of tackling first-time offenders without requiring them to go through the courts system, which has the potential to turn them into young criminals. There is evidence that that has happened in the past. Part I will provide that element.
When my hon. Friend the Minister considers the implementation of the Bill, I hope that he will recognise the impact of the new duties, especially in administrative and management functions, on youth offending teams. We must ensure that the provisions already in place work seamlessly and recognise the extra work that the Bill will make for youth offending teams.
It is to the great credit of the Government that they are introducing the measures in part II to protect vulnerable and intimidated witnesses, as recommended in "Speaking up for Justice". It is nothing short of a tragedy that some of the recommendations in the Piggott report in 1989 and the Utting report in 1997—which addressed the need to ensure greater safeguards for the most vulnerable members of our community in the face of a complex legal system—were not enacted by the previous Government. This Government are to be commended for moving swiftly to implement our manifesto commitment to ensure that greater protection is given at trial to victims of rape and serious sexual offences and to ensure that those who have been subject to intimidation, including witnesses, are protected by the legal system.
In the past, the system for trying rape cases has failed victims, predominantly women, because access to justice has been denied to them by the enormous legal and psychological obstacles that exist. The current practice, which allows extensive cross-examination of women by the alleged rapist, is nothing short of cruel and degrading. Rape, violence and sexual abuse against women and children must be seen as different from other forms of crime and the law should recognise that. Such abuses are usually about power relationships. Sadly, but not unexpectedly, the legal system reinforces that power imbalance in that women are subjected to what has been 444 described as a second violation in court at the hands of their alleged attacker or even at the hands of those who are part of the legal system. Therefore, it is crucial that the Bill offers protection to women and children in those circumstances.
In rape cases, women feel guilty and insecure. As other hon. Members have vividly described, a woman in those circumstances has had her whole essence violated. She must be sure that the law will protect her and prevent intimidation, but that is not the current experience of women. An audit carried out a few years ago in Luton by the Safer Luton partnership found that there was widespread under-reporting of rape and sexual abuse cases. The Luton and district rape crisis centre, which is one of the oldest in the country, told me that, in the year to March 1998, it had 307 calls from victims of rape or attempted rape. Some 128, 47 of whom were men, of those were seen and counselled. Of those 128, only 21 incidents were reported to the police. That is a tragically low reporting level and it means that women are not confident that the system will bring to justice the perpetrator of their rape and assault.
§ Mr. Hogg
The hon. Lady's comments have some force and I would not wish to pretend otherwise. However, has she considered that the process of going to the police station, being taken into the rape suite and undergoing a forensic examination, is inherently distressing and that, as much as the prospect of attending a criminal trial, weighs with prospective complainant?
§ Ms Moran
I agree with the right hon. and learned Gentleman. That is why we need to ensure that there is greater training for the police and members of the legal system to ensure that women who undergo undoubtedly the most traumatic experience of their lives have proper support.
However, it is obvious from women who have been counselled by the Luton and district rape crisis centre that they are prevented from seeking justice by the experience that they will have to face in court. That crisis centre feels obliged to tell women fully and frankly what they will experience so as to ensure that they do not embark on a judicial process that will cause further damage to that which is already unutterably devastating for women. That is a second terrible process. Women are rightly advised that they might face a further interrogation which will bring back all the memories and recent hurt of the incident, and that prospect prevents women from having recourse to the judicial system. That is why the Bill is so important.
The fact that a woman's previous sexual history is explored and that she is interrogated on that means that justice may be denied to her from the outset. Women will have a variety of reasons for not reporting or proceeding with a case, but the current legal system is a major influence on women's decision to proceed or not.
Of those women who report rape, fewer then one in 10 see their attacker convicted. In Luton last year, 31 reported rape and attempted rape cases were dealt with by the police, of which only nine were detected.
There is clearly a problem of lack of training in the legal system. There is a long wait between the incident and the court case and women feel that they have insufficient support during the process, particularly 445 insufficient information, especially when the Crown Prosecution Service is involved. That means that women's confidence in the system is undermined. That needs to be addressed every bit as much as the legal issues that we are debating today.
The Luton and district rape crisis centre told me that it can be extremely damaging, personally and psychologically, for a woman to be interrogated in court. It cited one case where the fact that a woman had gone for counselling between the incident and the hearing was used against her in court to imply that she had been tutored to lie about that incident.
In such circumstances, it is no wonder that 41 per cent. of women interviewed by Victim Support in 1996 said that they felt that they were on trial rather than the defendant, and that many felt re-victimised by the court process.
On average, cross-examination in a rape case is twice as long as in other trials, and, despite the fact that judges have a discretion to disallow evidence of sexual history, it is still used in 75 per cent. of rape trials. That is why we cannot simply rely on the good will and best view of the judge. Women in such circumstances need legal protection.
Luton's Victim Support told me of one case where a 20-year-old woman endured an abnormally long and, in its view, unreasonable cross-examination at Luton Crown court. Despite the fact that she was a virgin, her sexual history was widely discussed. As a result, she had a nervous breakdown during the trial and the jury returned a hung verdict. Because of her experience of the dreadful interrogation she would not allow the case to go to re-trial, so it was lost. The final indignity was that, as a result, her criminal injury claim had to be cut by 50 per cent. In such cases the credibility of the criminal justice system is undermined and rapists walk free, perhaps to rape again.
Will the measures in part II prevent such injustices? The answer is broadly, yes. I welcome them, but I agree with some of my right hon. and hon. Friends who have said that, in some respects, the Bill does not seem to offer sufficient protection even when a balance is struck between the rights of the defendant and of the accuser in the legal process. The most important issue concerns the matter of previous sexual history. If no is to mean no, a woman's previous sexual history must not be used as evidence of her consent in any circumstances. As a lay person, I feel that those provisions seem to offer too many loopholes to the court to allow such evidence.
In particular, clause 40(3)(b)(ii), which was introduced in the other place, seems to fall into the trap of implying that evidence of a strikingly similar behaviour could be admissible at the court's discretion. There could be grave dangers in undermining the excellent intent of the Bill by that clause. It is regrettable that the provisions of the New South Wales legislature, which lists circumstances in which such evidence is admissible, is not considered for inclusion in the Bill. Although I understand the reasons why that may be the case, we could amend the Bill in ways to improve the protection of vulnerable women.
Similarly clause 40(3)(a), which allows in certain circumstances such evidence where the defence argues that the perpetrator had an honest belief in consent, opens up a whole arena which could undermine worthy attempts to protect women. I hope that we shall have some opportunity to strengthen those provisions. I urge the 446 Government to look closely at an amendment to the substantive law on the definition of rape. That is one of the problems that we are encountering here and, although it is outside the scope of this Bill, that review is needed urgently.
In conclusion, I have two questions to ask the Minister on clause 17 and the provision of special measures. As other hon. Members have said so excellently, victims need certainty about this provision of protection. Can the Minister clarify that the courts will be encouraged to provide such protection for women who have suffered from domestic violence? In those circumstances, the need of women for protection from harassment and intimidation is often as great in the court as elsewhere. I hope that he can confirm that the courts will be encouraged to allow that protection for women in those circumstances.
My second question relates to child abuse. I agree with the comments of my hon. Friend the Member for Stretford and Urmston (Ms Hughes) about the inadequacy of legislation to protect children from sexual abuse. Can the Minister clarify whether the provisions in the Bill will assist in the prosecution of greater numbers of offenders, particularly where the children are aged five or under? Recently I was appalled and angry when I dealt with a constituency case in which the family and a child of five have been traumatised by the process of giving evidence to the police and dealing with the Crown Prosecution Service, only to be doubly traumatised by being told that, because the child is five and is unable to give proper evidence in court, the case will not proceed. That not only leaves the child feeling that it has been found guilty of lying, and traumatises the family, but potentially allows child abusers repeatedly to abuse children aged five and under without proper redress.
I understand from the mother that the child protection service in our area has advised her that fewer than 10 per cent. of cases involving children aged five or under are successfully brought to court, and that fewer such cases are successfully prosecuted. It cannot be right that protection of the most vulnerable in our society—those who have most difficulty in articulating their problems and who need our protection most—is denied. I hope that the Minister will confirm that, under the Bill, the Government will do their utmost to ensure that, in so far as possible, such a situation is never allowed to happen again.
I commend the Bill. It is important; it introduces radical measures to prevent youth crime and redresses some long-standing injustices concerning vulnerable and intimidated witnesses. I hope that we have the opportunity to improve and refine those measures further, and so ensure that we afford the most vulnerable the greatest possible protection.
§ Mrs. Teresa Gorman (Billericay)
We should examine the Bill in the light of Labour's election promises, especially those on women, with which I appreciate several hon. Members have dealt in detail. In the run-up to the election, the Labour party made a great deal of its promises to women to improve their position when they are brought to court in sexual offence cases.
447 At the Labour party's October conference, the Home Secretary said:All too often, the prospect of intrusive and unnecessary cross-examination in court is too much for many women.I hope that, in Committee, that will cause him to pay particular attention to clauses 40 and 41, which leave very large loopholes through which protection can be abused. Clever defence lawyers will find many ways around the legislation, allowing continued humiliation and discrediting of victims of sexual crimes. If the Government fail to tighten up the Bill in that respect, they will have failed to honour the promises that they made in the run-up to the election.
I am also concerned about the report of the statement by the Labour party's women's unit, which is headed by Baroness Jay, and to which the hon. Member for Leyton and Wanstead (Mr. Cohen) referred. It implies that a woman's behaviour during sexual activity should be used as a means of undermining her case that she did not give her consent. Whether she screams and kicks in her normal sexual activity is deemed in the report to be a possible relevant cause of a man declaring that he honestly believed that she was consenting. I raised in an intervention the point that one can interpret that the other way around: if a woman remains passive during an attack in order to protect herself, she could equally be accused of giving consent.
In many countries, consideration of a woman's sexual history in such cases—and of a man's in cases of gay rape—is banned. I raised the matter with my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg), and he rightly put me in my place by stating that I was referring to matters relating to defendants, not witnesses. I am sure that it does not need to be said, after everything that has been said in the House today, that the woman who is the victim, or the plaintiff, or as my right hon. and learned Friend referred to her, the witness, is often treated almost as if she was the defendant, such is the venom of the cross-examination that she has to undergo.
Although I understand that lawyers like to see things in a clear, objective, cut-and-dried fashion, a large element of humanity must be considered in the conduct of proceedings in our courts. There must be a limitation on the prurience that such cases attract. The Government's report "Speaking up for Justice" said that judges allowed up to 75 per cent. of defence applications to cross-question the victim on her sexual history in ways that seemedto go far beyond that demanded in the interests of relevance and … fairness to the defendant.That is the same as saying that the victim, witness or plaintiff—I prefer to use that word because it is slightly less emotive—is treated unfairly. She is the complainant, but she is treated as if she was the defendant. The courts and the legal profession have to take that into account.
We still live in a country in which the long history of the treatment of woman lingers on. A woman's freedom to engage in sexual activity is always considered to be more limited than that of a men. That hangover is the reason why women's sexual history becomes such a potent part of rape trials. The same applies to some extent in cases of child abuse. The prurient element is often very detrimental to the victim.
448 I am sure that there are people here today who are barristers—not least my right hon. and learned Friend the Member for Sleaford and North Hykeham—who could explain why sexual abuse cannot be considered as grievous bodily harm. To do so would remove a great deal of the emotive aspect. A woman who is raped is physically and, if you like, mentally abused, but she is being abused. If we leave the sexual element out, we might consider such cases in a more objective way. The same applies to what is normally called domestic violence, which is simply grievous bodily harm. However, because it is domestic, there is always a suggestion that the woman somehow connived at the treatment that she received. I go back to the point that that is a big flaw in the remarks attributed to the Labour party's women's unit. I urge the women on the Government Benches to take that up. I believe that they should correct the attitude that is inherent in those remarks. I believe that it is inherent generally in the way in which we consider such matters.
The courts have an unhappy history of treatment of women in rape cases. As we have already said, many women do not go to court because they know how women are treated in such cases. A great deal of that stems from a widespread hangover of sexist attitudes in our society. It is good to remember that women were considered almost as chattels until recent times. They had almost no rights in marriage and certainly no property rights. Sexist attitudes still prevail.
If hon. Members think that it is just me saying that, I urge any of them who have five minutes to spare to take a look at the book by Jill Seward, the victim in the Ealing vicarage rape case. Three males were involved, two of whom abused her in what even the judge referred to as a foul and disgusting way. They were given five-year sentences. A little bit was added on because they were there to commit a burglary. Nevertheless, one of those men was out after three years and the other served less than his five-year sentence. That is not uncommon. Many soft sentences are handed down by geriatric judges in our courts, often in cases that involve women and their sexual lives. Our courts are besmirched as a result of that and they need to do something about it. The Bill must deal with sentencing and the length of sentences.
After the vicarage rape case, Lord Lane, who was then the Lord Chief Justice, said that the sentences had been too lenient. That is not surprising, because the third man in that case, who did not take part in the rapes, but was involved only in the burglary, got 14 years. That contrast shows that the courts make dreadful mistakes, however learned the individuals who serve the courts may be and despite their elevation to the status of judges. Those mistakes are an abuse of the people who appear before the courts.
We listen to such learned gentlemen who usually occupy the Front Benches of this Chamber when it comes to legal matters; they are usually appointed Home Secretary or shadow Home Secretary. My hon. Friend the Member for Reigate (Mr. Blunt) is an honourable exception.
§ Mrs. Gorman
There are exceptions. However, the point is that such learned gentlemen do not always get it right; they lecture us in this place and sometimes attempt to intimidate us.
I should like the Bill to deal with the power of sentencing. I am not a lawyer, but I understand that it is possible for the Director of Public Prosecutions to lay down consistent penal policy and sentencing that would be reflected in courts throughout the country. Judges would have strong guidelines on the policy in such cases.
§ Mr. Gerald Bermingham (St. Helens, South)
I want to make one small point before the hon. Lady goes completely off track and reduces the good points that she made earlier. The Director of Public Prosecutions has no power at any time to direct the level of sentencing. That is for the Lord Chief Justice in the Court of Appeal.
§ Mrs. Gorman
If I may say so, that is a typical legal intervention and an attempt to humiliate the witness, plaintiff, or victim—as I consider myself to be. [Interruption.] I am now informed by the more gentle counsels of my colleagues that I should have been talking about the Court of Appeal.
However, as a lay person, I make the point that sentences are much too varied and, in the majority of rape cases, they are far too lenient. I hope that the Committee will deal with the issue of the sentences that are handed down by the courts.
It is about time that we had more women judges, who could influence the law. That is a tangential point and I realise that it is not specifically covered in the Bill, but as this is a Second Reading debate and I can say what I like, I shall say it again. I believe that that point is reflected in the general attitude to women in our courts. I make no excuses for putting the women's perspective because our courts are far too heavily dominated by men. There are sensitive issues about people's personal behaviour, their right to their personal behaviour and the abuses that they often sustain because they are less informed or less articulate and more easily humiliated. We need the advice of a woman in deciding on the laws of our country as they apply in such cases.
When the Bill reaches Committee, I hope that the Government will reconsider clauses 40 to 42 and address the concerns that have been brought to my attention by a group of more than 200 organisations, headed by Women Against Rape, and including Victim Support and the National Society for the Prevention of Cruelty to Children. Those organisations have stated that they feel "let down" by the Bill. I am sure that Ministers feel suitably chastised and humiliated by the fact that all those worthy bodies feel that the Bill is not up to the mark, and that they will take the opportunity in Committee to do something to meet those concerns.
I am sure that the details of those concerns are well known to the Government, and I do not wish to detain the House any longer than is necessary, but I feel strongly that both the public's attitude to rape cases and victimisation of plaintiffs by the courts themselves are issues that should concern the law and be reflected in the Bill.
§ Mr. Humfrey Malins (Woking)
I declare an interest as a recorder of the Crown court, a lawyer and one who has, for some years, sat as an acting metropolitan stipendiary magistrate. I suppose that that makes me a geriatric judge—
That is kind of the Minister. Nevertheless, I feel that I should apologise to my hon. Friend the Member for Billericay (Mrs. Gorman) for being a geriatric judge.
Over the years, I have had to sentence many young people and contend with many vulnerable witnesses, so I recognise that issues raised in the Bill are extremely important and I am happy to give the Bill a broad welcome. My hon. Friend the Member for Ryedale (Mr. Greenway) and the hon. Members for Don Valley (Caroline Flint) and for Basildon (Angela Smith) said that the vast majority of young people in this country behave impeccably, have nothing to do with the criminal courts and contribute greatly to our society. They were absolutely right to say so, but I believe that they would agree that young people today are growing up in a dangerous and difficult world—one more dangerous and difficult than it was, say, 30 years ago.
In today's world, young people are exposed, often too young, to aspects of life that would be better met when they are older. Influenced by an often malevolent and irresponsible media, they witness more family break-ups than ever before. They see fragmentation of community and family life—how many youngsters today live within a few yards of their grandparents? Housing conditions in our inner cities are often grim, and the prospects of obtaining or retaining a job are less sure than they were previously. Drugs—the greatest evil facing our criminal justice system—are commonplace.
That is why it is so important to prevent a child from embarking on a criminal career. A good home and family, a good education, the prospect of a job, plenty of sport at school, discipline, pride, self-esteem and, perhaps most important, literacy are all factors that can help youngsters to stay away from crime. The other side of the coin is the youngster who regularly appears before me in court. The odds are that he comes from a broken home, and, as happens so often, he has no parents in court to support him—a situation referred to by the hon. Member for Basildon. He is illiterate, he has no pride and no job and he has probably dabbled in drugs. At school, this typical young man truanted regularly. The prospects for him are bleak.
Anything that the House can do, not only to prevent offending in the first place, but to prevent re-offending by young people, must be done. Therefore, the Opposition approach the Bill in a spirit of co-operation with the Government, because it is important that we work together on those issues.
My hon. Friend the Member for Ryedale dealt at some length with the important new sentence of referral to a youth offender panel. We believe that is a sensible, forward-looking measure. The terms of the contract under clause 8 are sensible and will impose great obligations on a defendant. However, I must make two points. First, 451 I speak as a sentencer when I say that it is surely right that sentencers be given a wide discretion as to the circumstances in which that sentence is used.
It is quite wrong in principle to remove the court's discretion and impose the sentence of referral to a youth offender panel whenever there is a guilty plea by a first offender who is not to be given a custodial sentence or discharged absolutely. My hon. Friends the Members for Poole (Mr. Syms) and for North Thanet (Mr. Gale) made the same point. By the time they come to sentencing, lay magistrates, stipendiaries and judges have all the facts of the case before them. They have a feel for the case and for the defendant and his or her circumstances. It is almost inevitable that they will have ordered a pre-sentence report to assist them in forming a view about the sentence. As they know so much, they should surely be the ones to decide whether it is appropriate to implement this sentence in any one case rather than having Parliament apply a straitjacket to the courts. As I said earlier, that would be quite wrong.
Sentencers who may have decided to fine or conditionally discharge a young person who appeared before them will know that, if they do anything other than absolutely discharge or give a custodial sentence, they will have to pass the child to a panel. In those circumstances, they might be tempted to hand down what they believe to be the wrong sentence and opt for an absolute discharge—even though they wanted to do something else.
Secondly—and most important—the sentence must have teeth if it is to work. A problem associated with community sentences, such as community service, is that, if the defendant fails to co-operate and breaches the order, the court's powers are very limited when the defendant returns to court. Very little happens in practice. The court has been powerless to deal with a defendant who has breached a community service order—the Home Affairs Committee has said something about that problem—and has been able only to impose a fine or to order the order to continue.
What sanctions should be imposed if a young person fails utterly to co-operate with the youth offender panel? The hon. Member for Lancaster and Wyre (Mr. Dawson) mentioned that point in passing. He was clearly a social worker and, judging from his speech, knows a great deal about this topic. Hon. Members appreciated hearing his views. When a referral is made and the youth offender panel is organised, what will happen if the defendant says that he will not co-operate and turns his back on the whole idea? Under the Bill, it appears that he will simply be referred back to the court and sentenced in another way.
Despite the Home Secretary's remarks at the beginning of his speech, that sentence will almost certainly not include custody, as the youngster will have been referred to the panel in the first place only because a custodial sentence was considered inappropriate. By all means, let us give the young offender guidance and help. However, he should know that a failure to co-operate and play his part to the full will have severe consequences. In short, I believe that the breach of an order should mean an immediate return to court and an inevitable custodial sentence.
§ Mr. Bermingham
I declare an interest in the debate. I have 30 years' experience in the courts, and I witnessed 452 the shift from the 1960s towards custodial-based sentencing in the 1970s. There was then a brief respite under the Baker reforms—as I call them—when we moved away from custody and the community penalties. Is the hon. Gentleman suggesting that a child who may have problems beyond his control—perhaps parental, family or even medical problems—should receive a custodial sentence when he breaches an order that may have been imposed without full knowledge of his circumstances? If so, we are moving back to the bad practice of considering custody first and everything else second.
§ Mr. Malins
I pay tribute to the hon. Gentleman's distinguished career in the law and accept that he makes a serious point. However, I am saying that, when a court makes an order, be it a community service or a referral order, there must be a sanction against the person who, in effect, breaches that order wilfully. He should know that custody will result from breaching the order. By all means give a chance or give help, but there must be teeth. I hope that the hon. Gentleman accepts that argument. We need to drive home to youngsters the difference between right and wrong. I hope that, in Committee, the Bill will be amended to give the courts the strongest powers on any breach.
We must be careful that our youth justice system does not become too bureaucratic, too cumbersome and too expensive, thereby involving a disproportionate number of people. I think it was the hon. Member for Luton, South (Ms Moran) who expressed some concern about the extra work load involved not only in the implementation of this Bill but in the implementations of the Crime and Disorder Act 1998. It is well known that the volume of paperwork, including various reports, that shuffles round the youth court is far too much. The Crime and Disorder Act imposed a vast array of duties and thereby expenses on local authorities, the police and the probation service. Those bodies are already starved of funds. What implications does the Minister think that the Bill will have for those services? Will he talk about the Bill's financial and manpower implications? The matter was referred to by the hon. Member for Lancaster and Wyre when he talked about resources.
The second part of the Bill introduces a number of special measures to help witnesses in criminal proceedings. We are talking of witnesses who may find the process difficult, who may be overawed, or who may be reluctant, perhaps because of fear. A number of hon. Members have spoken about these measures with feeling. The hon. Member for Stretford and Urmston (Ms Hughes), who served with some distinction on the Select Committee on Home Affairs, had something to say about young witnesses. We valued her contribution. The hon. Member for Luton, South also feels strongly about witness protection measures.
Some of the measures—for example, the use of screens to shield the witness from the accused, evidence by live video link and the removal of wigs by judges—are already widely used in our courts, and to pretty good effect. Their extension is to be given a cautious welcome. I say "cautious" because a balance needs to be struck between competing rights. Yes, the witness has rights and should, as far as possible, be protected. Equally, the accused—let it never be forgotten that he is innocent until proved guilty—has rights, and so do the public. Was it my right 453 hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg) who said that the most important person in a court case of a criminal nature is the defendant?
For those reasons, I think that we should approach with some care the issue of special measures to help witnesses in criminal proceedings. The hon. Member for Meirionnydd Nant Conwy (Mr. Llwyd), who has a long and distinguished career as a solicitor dealing with criminal work, had something to say about the important issue of the rights of the various parties in a court case. The proposed measures need carefully to be examined in Committee.
I shall refer briefly to clause 27 and the video-recording of cross-examination. I feel that we are stepping into dangerous territory. My right hon. and learned Friend the Member for Sleaford and North Hykeham had something to say about the issue of cross-examination. There is no doubt that cross-examination is worth while only if it takes place live, with the counsel who conducts it being aware of what has happened in the case up to that moment. Cross-examination by video before the case started would not be a helpful development, as my right hon. and learned Friend argued. Let us consider those measures carefully in Committee, and let us hope that any extension of measures will be used sparingly by the courts when they come into force.
Again, we need to examine cost and practicalities. How many youth and Crown courts does the Minister plan to equip with screens and video links? How long will the process take? What is the expected cost of those measures? Will extra money be provided, or will it have to be found within existing budgets?
One of the most important clauses in the Bill is clause 33, which provides that defendants charged with rape or other sexual offences who choose to conduct their own defence may not cross-examine the alleged victim of the offence. Several hon. Members commented on that, not least my hon. Friend the Member for Billericay.
In general terms, the clause has our support, but the Minister should take on board the fact that concerns have been expressed not only in another place but by senior members of the legal profession. My hon. Friend the Member for Gainsborough (Mr. Leigh), my right hon. and learned Friend the Member for Sleaford and North Hykeham and the hon. Member for Meirionnydd Nant Conwy—perhaps I should apologise to the House for quoting three lawyers—expressed concern about clause 33 and succeeding clauses in terms of the rights of the defendant.
Some have argued that the provisions of clause 33 and subsequent clauses are contrary to human rights legislation. Is the Minister satisfied that there is no such conflict? It may be worth introducing an amendment in Committee to the effect that the judge should have power in an exceptional case to grant leave to the unrepresented defendant to put his own questions. I urge the Minister to consider that with the greatest care. I recognise that, in the cases under discussion, the court will appoint a barrister to act for the defendant, but difficulties could arise if the defendant fails to co-operate with a barrister instructed on his behalf.
Clause 37 illustrates the position and reminds us that where, under clauses 33 to 35, the defendant is prevented from cross-examining, the court will appoint a barrister to 454 act for him if he wants one. What happens if he does not want one? The court will appoint a barrister itself. However, once appointed, that barrister has no duty of care towards the defendant and is not responsible to him. One fears the prospect, albeit remote, of miscarriages of justice. Who knows what effect such a saga in court might have on a jury, who might take a view about what is going on and bring in a guilty verdict—
§ Mr. Hogg
To develop the point a little, does my hon. Friend agree that a line of cross-examination might be pursued by the barrister retained by the court for the benefit of the defendant that was inconsistent with the defendant's line when he went into the witness box? That would be extremely prejudicial to the defence.
§ Mr. Malins
My right hon. and learned Friend is right. There is no guarantee that the barrister who is instructed by the court to look after the defendant's interest will do so, try hard though he or she might. I know that the Minister recognises that those are serious matters. I appreciate that they might arise only in a very rare case, but they will need to be examined in Committee.
Clause 40, which deals with sexual offences, restricts the ability to introduce, or to ask questions about,' any sexual behaviour of the complainant. Will the Minister perhaps comment a little more on clause 40(3)(b), which tells us that questions can be asked about the sexual behaviour of the complainant if the so-called parallel behaviour took placeat or about the same timeas the event in question, and if the similarity between those two sets of behaviour cannot be reasonably explained as a coincidence? What doesat or about the same timemean? Does it mean 24 hours? Would it not be wiser and more sensible to have a much wider time frame? Again, the imposition of such a time frame on the court is over-restrictive and will have to be examined again in Committee.
By imposing restrictions on reporting alleged offences involving persons under 18, clause 43 gives much-needed protection, and we welcome it. The right hon. Member for Berwick-upon-Tweed (Mr. Beith) said something about the issue. As always on these matters, he spoke with sense, experience and force. I am glad to see the inclusion of the public interest defence and the factors that contribute to that defence, which strike an appropriate balance, but, again, those matters will have to be examined carefully in Committee.
I began by saying that many youngsters grow up in a difficult world. The fact that a committed number of us are in the House establishes that, across the parties, there are hon. Members who have a passionate interest in our criminal justice system. We all believe that preventing a child from embarking on a criminal career by diverting him from crime and by grasping the problem early is important.
Does the House feel that not just the Home Office but every Department of State has a job to do in relation to young offenders? Those in government and local authorities who have anything to do with housing, education or health can, and must, play some part.
Diversion is important. First-time offenders need to be confronted with the reality of what they have done. I was a member of the Home Affairs Committee when it spent 455 a day with Thames Valley police to learn more about restorative justice. The Home Secretary referred in positive terms to that police force's work. My hon. Friend the Member for Poole referred to the important issue of victims in our criminal justice system, as did the right hon. Member for Berwick-upon-Tweed.
As we learned during the visit to Thames Valley police, restorative justice is all about the conferences' involving young criminals, their victims and their families. My hon. Friend the Member for Poole was right to say, or imply, that making youngsters have contact with the victim—if the victim wants it—does not just help the youngster but helps the victim to overcome the fear that he or she has felt.
I learned about the importance of making a young person realise what pain and suffering a crime can cause. All hon. Members should be impressed by the work of Thames Valley police and hope that it is extended throughout the country, because benefits will undoubtedly result.
I may have doubts about certain parts of the Bill. I wonder whether the costs and sheer bureaucracy of it may be too much. I may be concerned that some parts of the Bill appear to take away powers from the courts and to limit their discretion too much, but none of those concerns is enough to stop me from giving the Bill a broad welcome. It was correct to say, in a spirit of cross-party co-operation, that the Bill may need looking at. I appreciate what the Home Secretary said in that respect. Like us, the Home Secretary and the Minister acknowledge that youth crime must be dealt with by us all in a non-party political way. We can be sensitive and constructive, but I conclude by reminding the House that, above all, youngsters need discipline and strong ethical guidance, as well as the knowledge that, although the law may be there to help, as it should be, it is also there to punish—and to punish harshly when appropriate. We have a big task ahead and I look forward to playing a very small part in it.
§ The Minister of State, Home Office (Mr. Paul Boateng)
I welcome the hon. Member for Woking (Mr. Matins) to the Front Bench. He has made an important debut in an important debate and he will bring a welcome fund of wisdom and experience, both professional and judicial, to our deliberations here and in Committee. Where possible, we must build on the consensus in the House and in the country about the need to focus on youth crime.
The Bill is about balance. We must restore the balance that has been lost over the years between the defendant and the victim in court. Having listened to the Conservative contributions, particularly that from the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg), I believe that, to a certain extent, they have got the balance wrong over the years. In government, the Conservatives did not give the attention that we are determined to give to the victims of crime. One aim of the Bill is to rectify that imbalance. Some Conservative Members, including the hon. Member for Billericay (Mrs. Gorman), believe that the time has come to give the victim a better deal in our courts. We are determined that that will happen.
456 The Bill is ambitious and radical. It is ambitious in its aim of a fundamental change in the way in which we deal with first-time young offenders and witnesses. The underlying philosophy of the Bill is the radical belief that the victims and witnesses of criminal offences are key participants in the criminal justice system. Victims, witnesses and defendants must be at the heart of the criminal justice process. If justice does not serve witnesses and victims as well as it serves defendants, it fails. We are determined not to allow that.
Such a radical change means achieving a proper balance between the rights of defendants and the interests of the rest of society in ensuring that crime is reported, prosecuted and punished. Victims of crime, particularly rape victims, are deterred from complaining by the thought of the cross-examination that they will be subject to if they do so. That leads to an unacceptable rate of attrition in the criminal justice system in relation to the offence of rape.
Part I focuses on dealing effectively with young offenders, using the principles of restorative justice to get to the root of their offending behaviour when appropriate, and intervening early. It is important that we get it right. Our considerations in Committee will be vital to our success, as will proper reflection on the piloting that has characterised our approach to many of our proposals.
The Government have taken swift and effective action against youth offenders. Piloting of the main youth justice reforms has been under way in 10 areas since September 1998, and the figures for the period up to 31 January 1999 show that the pilots have started well. There have been 1,435 reprimands, 769 final warnings, 200 reparation orders, 102 action plan orders and 12 parenting orders.
Important points have been made—especially by my hon. Friend the Member for Luton, South (Ms Moran), but also by my hon. Friends the Members for Basildon (Angela Smith) and for Don Valley (Caroline Flint), and reiterated by the hon. Members for Poole (Mr. Syms) and for Woking—on the role of parents in addressing issues of youth offending. We shall expect parents to co-operate in operation of the panels. If they fail to turn up and to take their responsibilities seriously, they may be found to be in contempt of court, from which penalties will flow.
Flexibility has also been mentioned in the debate, and rightly so. Equally, however, it should be said that some parents are much more part of the problem than they will ever be part of the solution. Those are the tragic circumstances in which so many young people continue to find themselves. In such circumstances, it would be quite wrong to make it mandatory for the panel to have the parents before it when those matters are being considered.
Therefore, although parents will be required to be present in the majority of cases, there may be some cases, in which children are looked after by the local authority, when, at least initially, it is desirable not to have parents present but away from the proceedings, so that the young person might effectively share the problems that he or she has had to confront growing up.
I must therefore tell my hon. Friend the Member for Stretford and Urmston (Ms Hughes)—who brings enormous experience of front-line youth work to our debates, and who, I hope, will be helping us in Committee—that, no, we shall not make parents' attendance mandatory when a child is looked after by the local authority.
457 Hon. Members on both sides of the House—but particularly the hon. Members for Ryedale (Mr. Greenway) and for Woking—have asked why we should not retain for magistrates a discretion in referrals to panels. It is important to understand what is so radical about our proposals on youth offender panels, which will offer not simply another sentence but an alternative. The entire purpose of our proposals on first-time offenders who have confronted and owned-up to their guilt is to take them entirely out of the criminal justice system. The important and novel feature of our proposals on youth panels, therefore, is that those young people will be offered a very different opportunity.
My hon. Friends the Members for Don Valley, for Basildon and for Stretford and Urmston made the point that we have to ensure—as we shall—that we get the panels' composition right. We are already doing it. We should recognise the work that is already being done—not least in the constituency of my hon. Friend the Member for Luton, South—to ensure that the experience that we are gaining from operation of youth offending teams will assist in ensuring that we get the panels' composition right. We believe that those panels will affect about 13,500 offenders each year, and we see, arising from that, savings of about £4.5 million a year. That will help us to address the points raised by the hon. Member for Woking in terms of meeting the costs of the live-link facilities, the video evidence and prohibiting cross-examination in person.
We will need to return in detail to the matter in Committee. First, our proposal is the most effective way of ensuring that the abuse of the process that has occurred—albeit on a limited number of occasions—never occurs again. We are still living with its legacy; when the woman is obliged to confront the very person who has submitted her to the horror and humiliation of rape, so aptly and appropriately described by the hon. Member for North Thanet (Mr. Gale). That must not happen, and I can assure the House that we are satisfied with the proposal. I do not believe that the Lord Chief Justice demurs, and it is certainly the view of my right hon. and learned Friend the Attorney-General and my right hon. Friend the Home Secretary that the measure is fully compliant with our obligations under the European convention on human rights.
The provision will enable the lawyer appointed by the court to test the evidence; no more. It is not a substitute for proper instructions from a defendant, and we do not pretend that it is. The defendant has made a choice, and has wilfully turned his back on the opportunity to be represented. In those circumstances, our convention obligation, and our obligation to fair process, is to make available to the lawyer all that can possibly be made available to enable the lawyer to test the evidence. That will enable our treaty obligations to be met and our commitment to the fairness of the proceedings to be fulfilled.
§ Mr. Boateng
No, I do not have time to give way. The hon. Gentleman will have an opportunity—hopefully in Committee but, if not, on Report—to make his points.
We believe that our proposals are in the interests of justice, and we believe that the balance is right. That is why we will be seeking to proceed, and why we will seek 458 in Committee to reverse the defeat on mandatory referrals in another place. That is not an attack on judicial discretion, but a way of taking forward our radical and appropriate proposals.
The measures to protect witnesses are again about getting the best evidence. There is flexibility in the measures, and that is why it will not be mandatory for the courts to make any particular safeguard available to a witness. Having seen and heard the witness and assessed his degree of vulnerability, and being aware of the evidence that it will be required to handle and the nature of the charges, it will be for the court to determine what measures should be put in place.
Those measures will be about protecting the vulnerable, including the very young. We take the point about concerns in relation to young witnesses of, say, five years old, not being able to give their evidence. The court will have discretion to admit such evidence where it is satisfied that the evidence is of value and will serve the interests of justice.
On cross-examination of previous sexual behaviour, there is a need for balance. We believe that we have got the balance right, and there will be an opportunity to test that in Committee.
Some of the judicial attitudes that have been exhibited in relation to promiscuity, for instance, are simply not acceptable. That is why the Bill does, indeed, to some extent fetter and limit the discretion of the Bench. In the past, that discretion has been exercised in a way that has not been compatible with the public interest.
The measures in the Bill will have a real impact on the way in which the criminal justice system serves society. If we can prevent young offenders from becoming tomorrow's career criminals, we will have done society a real service. If we treat witnesses better and improve the quality of evidence that they can bring to trial, we will improve confidence in the criminal justice system. Building that confidence and creating a climate in which people can support the criminal justice system is central to preventing and reducing crime. I commend the Bill to the House.
§ Question put and agreed to.
§ Bill accordingly read a Second time, and committed to a Standing Committee, pursuant to Standing Order No. 63 (Committal of Bills).