§ Consideration of amendments on Report resumed.
Lord Silkin of Dulwich moved Amendment No. 26:
After Clause 30, insert the following new clause:
§ ("Video recorded interviews admissible as evidence.
§ .—(1) In any criminal proceedings a video recorded interview with a child under the age of 14 may with the leave of the judge be tendered in evidence and if so tendered shall be admissible as evidence of any relevant matter.
§ (2) It shall be the duty of the Secretary of State to issue from time to time codes of practice for the conduct and recording of video interviews with children in connection with this section.
§ (3) In deciding whether to grant leave for a video recorded interview to be tendered in accordance with this section the judge shall consider all the circumstances including in particular—
- (a) the probative value of the video interview in the light of the manner in which questions have been put to the child and answers given by him; and
- (b) the question-whether the probative value of the video record may be outweighed by any prejudice arising there from:
§ Provided that leave shall not be granted unless the judge is satisfied that all parties who may wish to put questions to the child will at the trial have a fair opportunity to put them.
§ (4) The fact that a video recorded interview has been tendered in evidence shall not prevent the child who has been interviewed from giving evidence in person at the trial and shall not affect the right of any party to cross-examine him if he gives evidence in person.
§ The noble and learned Lord said: My Lords, the House will recall that we had a substantial and valuable debate in Committee on the question of the provision of evidence by a child of tender years by means of video. I should like briefly to summarise the arguments.153
§ I think it is common ground, and certainly it is the view of the Home Secretary, that so far as possible one should avoid the situation in which a young child is compelled to give evidence in court, especially so in cases in which the substance of the matters under consideration concerns what happened to the child himself or herself. In order to assist toward that common end, the Government have proposed in Clauses 30 and 31 of the Bill that a system should be adopted under which a young child can give evidence, presumably somewhere in the court building, by the method of using closed-circuit television which will prevent the child from seeing or being seen directly by anyone in the dock or persons who otherwise may be involved in the case.
§ That is a valuable provision but many noble Lords considered it insufficient and felt that there should be a provision in the Bill which would enable a prerecorded interview with the child, whether conducted by the police when the complaint was made originally or carried out in some other way, to be made available as evidence in the court. That would be supplementary in a way—but in a very special way—to the provisions already contained in the Bill in relation to the giving of evidence by that method.
§ I think it is fair to say that in Committee there was a very considerable amount of support for that proposal. It was felt, as indeed we feel, that any way which can, even to a small extent, avoid the necessity of the child actually appearing in the court building to give evidence should be taken. We take the view that the taking of a video record in these circumstances, probably fairly soon after the complaint—if there is a complaint—is very likely to be a very much better record of what accurately is reported, or actually happened, than something which perhaps the child has to remember months later.
§ We also took the view, and take the view, that there may well be many cases where, when the defendant has had the opportunity of seeing the video record and hearing what the child says, he may be inclined, for one reason or another, to decide that the sensible course—where, of course, what the child says is true—is not to force the child to give evidence and therefore force a continuation of proceedings which would, undoubtedly, do harm to the child but where justified, to plead guilty to the offence. Experience in the United States, where this system has been adopted, suggests that this will often happen. One senses, particularly where we are dealing with parents or relatives of a child—whatever may have happened in the past—that the feeling of compassion towards the child which is likely to exist may well persuade the parent or relative to take the course I have just suggested. Therefore, for all of those reasons, the use of the video can be an extremely valuable additional method of avoiding the necessity for a young child to give evidence.
§ At the Committee stage, I think it is fair to say that the major objection to the amendment then moved, expressed by the noble and learned Lord, Lord Hailsham, but also by others, was that we had not made provision—deliberately had not, at that stage, made provision—to compel the child to give evidence if that should be required. It seemed very clear that 154 the feeling of the Committee was that that provision should be made but that there would be very real difficulties in passing an amendment of this kind, however valuable, through the House unless it were guaranteed that the ordinary right to ask questions, and cross-examine, should be available if a party to the proceedings, one of the defendants, wished to do so. So we have made that change in the amendment. It is to be seen as a proviso to subsection (3), which provides that leave shall not be granted by the judge unless he is satisfied that all parties who may wish to put questions to the child will, at the trial, have a fair opportunity to put them.
§ The amendment that we now propose, if I may summarise, is firstly that the video recorded interview with the child under the age of 14 may be tendered in evidence if the judge grants leave. If tendered, it will then he available as evidence in the ordinary way provided that the judge, before he decides to grant leave, has regard to all the circumstances. In particular, he is to have regard to the probative value of the video interview in the light of the manner in which the questions have been put to the child and, of course, the answers given by the child. That would be apparent to the judge on seeing the video record himself. He must also consider, generally, the question of whether the probative value of the record may be outweighed by any prejudice which arises from it. We come then to the vital proviso that leave should not be granted unless the judge is satisfied that all parties who may wish to put questions to the child will have a fair opportunity to do so at the trial.
§ We make provision in subsection (2) for the Secretary of State to issue codes of practice for the conduct and recording of video interviews, bearing in mind that this is an area that is constantly developing in other countries and, when law, will certainly develop here. We shall learn a great deal about the best way in which this system can be put into action. We provide in subsection (4) that a video interview having been tendered in evidence should not prevent the child who is being interviewed from giving evidence in person at the trial and should not, if he does so, affect the right of cross-examination. That may be thought to speak for itself; but it is probably as well to make quite clear that this is intended to be the situation.
§ I hope I have dealt with this matter reasonably slowly having regard to the fact that this is the second round and my noble colleagues—if I can so describe them—have also put their names down and will, no doubt, be adding particular points.
§ May I say just one word in regard to the amendments which will, no doubt, be moved by my noble friend Lord Paget. They seem a praiseworthy attempt to improve on my drafting, for the most part, and I am always pleased when that is done for me. However, there is one amendment my noble friend will speak about particularly, and that is Amendment No. 28. He proposes that subsection (3) should be omitted from the amendment that I am moving. If that amendment is agreed to, and subsection (3) is 155 omitted, that would have the result that the proviso to subsection (3), which we have inserted at this stage to preserve the right of cross-examination, would go, and no cross-examination would be compellable. I rather wonder whether my noble friend intended to have that effect. In due course perhaps he will let us know. I beg to move.
§ The Deputy Speaker (Baroness Serota)
My Lords, as an amendment to Amendment No. 26, I call Amendment No. 27, in the name of the noble Lord, Lord Paget of Northampton.
Lord Paget of Northampton moved, as an amendment to Amendment No. 26, Amendment No. 27:
In subsection (1), line 3, leave out from first ("evidence") to end of line 4 and insert ("and the judge shall not grant leave unless he is of the opinion that the video ought to be admitted in the interests of justice in the particular circumstances of the case. In the event of such leave being granted the accused may serve notice requiring the attendance of the child for cross-examination.").
§ The noble Lord said: My Lords, I am most grateful for the kind things that my noble and learned friend has said. I do not think there is any real difference in principle between the Government, my noble and learned friend and myself. We have a balance of two difficult things. On the one hand, all of us want to protect children. On the other hand, I think all of us are determined that even that objective shall not be put to the point of denying a man who faces this awful sort of accusation a fair trial. Those are the two essentials, and basically one has to give priority to the determination to provide a fair trial. When one is in a court that has to decide, the trial must be a fair one.
§ We must also bear in mind the tremendous tendency of children to romance. It is awfully silly to call children liars. The untruths that they are telling are often true to them. They are all mixed up. The difference between falsehood and truth is part of human education. It comes with education and is not there naturally.
The new clause which has been moved by my noble and learned friend provides that:
In any criminal proceedings a video recorded interview with a child under the age of 14 may with the leave of the judge be tendered in evidence and if so tendered shall be admissible as evidence of any relevant matter".
With great respect, I do not see much point in those words. If it is ordered by a judge that a video shall be tendered in evidence, then of course it is tendered for all purposes and I would omit those words.
§ Further, once one has determined to make this a matter of leave by the judge, one recognises two things: first, that this is an exceptional and not a routine procedure in which a judge has to consider whether, with all the objections involved, a video ought to be used in that case; and, secondly, that one is giving discretion to the judge. It seems to me that there is very little point in telling the judge afterwards how he should exercise his discretion. That is for him to decide. Those are really my objections to subsections (3) and (4).
§ Lord Campbell of Alloway
My Lords, for clarification may I ask the noble Lord whether he recognises the distinction between evidence which is 156 acceptable only as to the fact that a statement has been made and evidence which goes to the truth of the issues in dispute? If he accepts that distinction, can the noble Lord clarify his last few observations?
Lord Paget of Northampton
My Lords, I am deeply sorry, but I am afraid that I heard very little of what the noble Lord said. I am rather deaf. I have a hearing aid but it is not working very well.
§ Lord Campbell of Alloway
My Lords, it is not worth repetition; very little that I say is. It will be in Hansard.
§ 8.45 p.m.
Lord Paget of Northampton
My Lords, subsection (2) of Amendment No. 26 reads:It shall be the duty of the Secretary of State to issue from time to time codes of practice for the conduct and recording of video interviews with children in connection with this section".That is probably necessary. On the other hand, it is equally important that we should realise—this is where the judge's discretion comes in—that he is given discretion and that the use of videos should be an exceptional procedure and not a matter of routine. I view with considerable alarm the prospect of the idea getting around that if you talk to a social worker she will help you make a video.
Oddly enough, making a video is a rather romantic thing to do, particularly for children, and it has to be handled carefully. We do not want children saying, "What fun, let us go and make a video". Children are like that and, whether or not one likes it, most of the children in an estate will have seen videos, some of them not very nice videos. The idea of involving them in videos is something that one has to do with care.
Subsection (3)(a) deals with what the judge has to consider, but it is impossible to imagine a judge not considering those things. Of course he will consider the probative value and the question of whether the video is needed for the trial. If you are giving him discretion, it seems a little otiose to tell him how to use it.
Subsection (3) ends with the words:Provided that leave shall not be granted unless the judge is satisfied that all parties who may wish to put questions to the child will at the trial have a fair opportunity to put them".Why "all parties"? Why introduce this sort of general right? The only person who, in terms of justice and a fair trial, must have that right is the person who is accused. It should not be general.
What I have suggested in my amendment is that,the judge shall not grant leave unless he is of the opinion that the video ought to be admitted in the interests of justice in the particular circumstances of the case. In the event of such leave being granted the accused may serve notice requiring the attendance of the child for cross-examination".I do not know whether I have the same intention, but I think that puts it with a little more precision. I suggest that there should be a clear indication that this is an exceptional procedure—not something which we are in the habit of doing—which can be very useful on occasion. I think that I cover the same points, but possibly with greater clarity. I beg to move.
§ Lord Edmund-Davies
My Lords, throughout the passage of this Bill the Government have been 157 concerned with the forging of new remedies for old evils or have discovered fresh situations which menace the well-being of the community. In that context, they have dealt themselves, before any amendments came along, the special situation of children under 14 years of age who have been involved either as witnesses or as victims in dreadful offences. Clause 30 concerns the video link. Clause 31 contains another provision where children of tender years are involved.
Amendment No. 26, which has been tabled and dealt with by the noble and learned Lord, Lord Silkin of Dulwich, whose observations I respectfully desire to adopt as my own, deals with one of the situations which is either an old one which has manifested itself in a fresh and unpleasant manner or it has emerged only recently. So the amendment recognises the importance of an early interview. It provides for a video recorded interview and it provides that that may, with the leave of the judge, but not otherwise, be tendered and:be admissible as evidence of any relevant matter".We must not burke it: it means evidence of the fact as well as that the account was made by the child.
Common sense indicates that the sooner an interview of that kind is conducted the better. The children's memories fade, perhaps rapidly in some cases. They dwell on the incidents which they allege they were subjected to and they become ill and confused. With time they end up in a pitiable state.
It is quite clearly desirable that if such an interview is to be conducted at all it should be done at the first possible moment. It does not brook of the presence of the person who is alleged to have been the perpetrator of the offences. It cannot be possible for a person to have had an opportunity at that time to question the child in person. What it can do is enable an inquiry or an interview to take place which is conducted by a reputable person. The suitability of those employed for that task will be strictly governed by the code of practice for the conduct and the recording of the interview. Then the video recording will be produced provided that the judge is satisfied that all parties who may wish to put questions to the child will have a fair opportunity to do that at the trial. This is only a slight extension of those remedies which the Government themselves recognised and adopted in the clauses in the Bill to which I have already made reference.
The new factor in this draft, as contrasted with the draft which was put forward in Committee, is the recognition of the defect in the old drafting which meant that no opportunity was necessarily afforded to the person who was accused. The amendment provides:that leave shall not be granted unless the judge is satisfied that all parties who may wish to put questions to the child will at the trial have a fair opportunity to put them.The idea that there should be any questioning of the child until the trial is quite unthinkable. It would lead to the harrying of a child before the trial, which we want to avoid in the child's own interests and in the interests of truth. It would enforce upon the prosecution an obligation which, to my knowledge, is not created and imposed in any other procedure in the criminal law. That is quite unacceptable. The first 158 opportunity the accused person would have to question the child would be as in any ordinary crime—at the trial itself. To ask for more than that and to subject a child to a fresh terror would be quite unthinkable.
This is a moderate measure which seeks to recognise and give effect to the great sense of uneasiness which exists in the community at large when it hears again and again and more frequently than ever of the dreadful cases that are thrown up. I respectfully submit that in the circumstances of the new wording of the new clause the amendment merits acceptance by the House.
§ Lord Campbell of Alloway
My Lords, I oppose the amendment but I do so with a certain hesitation because I accept everything that the noble and learned Lord has said about the necessity of the provision for an early interview. But the question is: is this proviso adequate? Does it provide an adequate safeguard?
I confess to your Lordships that as regards that matter I have changed my opinion since I last spoke in your Lordships' House in deference to those noble Lords who spoke in Committee on the Bill. I confess that I was wrong to have supported the amendment in its previous form because it did not afford adequate safeguards to the accused. I was much moved by what was said by my noble friend the Minister and by my noble and learned friend Lord Hailsham of Saint Marylebone. Now I am convinced not only of the value of the first interview but also of the necessity to bring video recorded interviews forward in the law as admissible evidence. That is necessary to strengthen the safeguards for the accused. I have sought to do that in rather a DIY drafting for which I take total responsibility. I did that in Amendment No. 30, which I propose to move in due course.
It would be quite wrong, especially at this hour of the night, to weary your Lordships with the merits of that amendment but the safeguards are safeguards which are not envisaged elsewhere in the Bill. They are not envisaged in the amendment which I opposed for the reasons that I have given. In due course I propose to move Amendment No. 30, which provides in my respectful view adequate safeguards for the accused. That must assuredly be, in deference to the noble Lord, Lord Paget of Northampton, the primacy of our consideration.
§ 9 p.m.
§ Lord Denning
My Lords, we discussed this matter in Committee. Let me say that in all criminal cases and in other cases the search is for truth and justice. We have, in justice to the children, brought into the Bill the video link. In the next door room at the trial there will be the child, the judge, the counsel and probably the solicitors questioning the child. Through the video, the jury in the trial room will see what is happening. That will probably take place six or 12 months after the incident complained of. The child will probably have either forgotten the incident or will have been told by those about her what she is to say in order to prepare her.
If we are to obtain truth and justice, the sooner the child's statement is taken the better. I have tried many cases and I have always found that a statement 159 made to the police immediately after an incident is more likely to be true than a statement made weeks or months later. I suggest that a statement made on the new video cassette machines in easy and comfortable surroundings which do not create apprehension and nervousness and as soon as possible after the event should be admissible in evidence.
It is said that there must be protection for the accused by way of cross-examination. We place great store on cross-examination in our system. That is not the case in other jurisdictions, such as those on the Continent, and perhaps we place too much emphasis on it. It does not always bring out the truth. However, it is a valuable right which we wish to preserve and the amendment is designed to ensure that right. It will not be used at the time when the statement is made but later. It will depend on the judge giving leave, which is the safeguard. If the evidence of the child on video is admissible, it can then be tested in the trial.
I prefer the proposals contained in Amendment No. 26. In all those amendments, we are doing our best to secure truth and justice by the taking of statements as soon as possible after the commission of the offence and by preserving the right of cross-examination. The amendments vary slightly, but I support Amendment No. 26.
§ Lord Simon of Glaisdale
My Lords, it is clear from the speeches made by the proponents of the amendment that they are concerned with sexual abuse and assaults on young children. However, the new clause goes far beyond that when it states that video interviews are admissible in all criminal proceedings.
We also heard at Committee stage that the initial interview with the child is quite rightly taken for other than forensic purposes. In those circumstances, the social worker would put leading questions because it would be her objective to draw the child's story out. That is quite contrary to our forensic system and it is extremely dangerous because the result is apt to be the evidence of the social worker rather than that of the child.
§ Lord Simon of Glaisdale
Even if that procedure was limited to cases of sexual abuse of young children, the noble Lord, Lord Paget, has rightly pointed out that perpetrators of abominable crimes are often exonerated or go free from prosecution. The alternative is to put the child through the trauma of giving evidence and recapitulating a terrible event in a way that is likely to be damaging and distressing. When I weigh those alternatives, I am convinced by the arguments of the noble Lord, Lord Paget, that bringing in this innovation would be most unsafe.
The noble Lord attempted to dismiss as unimportant the words in subsection (1):evidence of any relevant matter".Those words are crucial because they make clear that a statement out of court, probably made in answer to leading questions, shall be not merely evidence of consistency of conduct but also evidence of the guilt of the accused.
160 There is a further objection to the proviso in subsection (3). The noble Lord, Lord Paget, pointed out that the words "all parties" are not limited to the defendant. It is open to the prosecution to say: "I wish to put further questions". If a defendant asks for a child to be called to be cross-examined, he will immediately be subject to some prejudice against him by the jury. If he says that he wants the child called, the whole purpose of the clause is gone. The child will have to re-enact the terrible experience.
Therefore, we should do better to face the fact that some villians may get away with abominable crimes rather than risk prejudice against defendants as a result of early statements made on video or insisting on a child being called in circumstances where there will be prejudice against the man in the dock because of the nature of the crime. I beg your Lordships to remember the way it was put by my noble and learned friend Lord Hailsham in Committee. He said that the worse the crime the more essential it is to maintain the safeguards for the fair trial of the accused.
§ Baroness Faithfull
My Lords, I support the noble and learned Lord, Lord Edmund-Davies, and I am most grateful for the comments made by the noble and learned Lord, Lord Denning.
The amendment in another form was before your Lordships, as has been stated, on 22nd October. On that occasion the noble and learned Lord. Lord Hailsham, who has been referred to, said:it is a fundamental principle of English law that a man shall not be convicted of an offence unless it is proved to the satisfaction of the jury by admissible evidence that he is guilty beyond reasonable doubt".—[Official Report. 22/10/87: col. 279.]I entirely agree with the noble and learned Lord.
Furthermore, I suggest that the children about whom we are talking would agree with him. No child's happiness is met, nor that of her family, if her father is unjustly convicted. I should say to the noble Lords, Lord Paget of Northampton and Lord Campbell of Alloway, that there is nothing in Amendment No. 26 to alter either the burden or the standard of proof in a criminal case.
The noble and learned Lord, Lord Edmund-Davies, in our last debate said that while never losing sight of that fundamental principle of our law there is another matter to be borne in mind—that justice be done to the children. I suggest that there is another facet—that justice be seen and be understood to be done by the community in which the family lives. With much regret, I wish to say this to the noble and learned Lord, Lord Simon of Glaisdale. He commented that it would be better for a man to be found not guilty or for the case to be discharged even if he had committed the offence.
§ Lord Simon of Glaisdale
My Lords, if the noble Baroness will allow me to intervene, that is not quite what I said. I said that it is better that one or two villains should escape than that an innocent man should be convicted through prejudice.
§ Lord Campbell of Alloway
My Lords, perhaps the noble Baroness will allow me to ask whether she would agree that we are in no way concerned with the burden of proof or with the standard of proof; we are 161 concerned with admissibility of evidence. If she would address her mind to that issue, I should be obliged.
§ Baroness Faithfull
My Lords, to take up the point made by the noble and learned Lord, Lord Simon of Glaisdale, I apologise if I misinterpreted what he said. It is serious when a man who is alleged to have interfered with children is thought by the community to have been discharged and to have been found not guilty. I therefore suggest that a balance must be struck between the alleged offender, the child and the community.
My noble friend the Minister said on 22nd October that we need to consider the twin tests of benefit to the child and interests of justice. He said later that if tapes are admitted on a regular basis, a child may very well be faced with increased strain. It would lead to her being searchingly cross-examined on minor discrepancies between her video statement and her courtroom testimony, which would be worse than what happens now.
Amendment No. 26 would allow the prosecution to play a video tape of the child's original statement. There would be no need for a child to recount the incident before the video tape was shown. Therefore, there would be no discrepancy between the video tape and her courtroom testimony for the defence to exploit. Thus, what the Minister says the amendment will cause to happen will not happen. However, I suggest that what the Minister fears is exactly what will happen if this amendment is not passed. Without the amendment the prosecution will still have to make children tell the story to the court from memory many months after the events.
Where a video has been made the defence would be able to use it to cross-examine the child on minor discrepancies between the video statement and the story she told the court. That can be done under the existing rules of evidence. It is already happening. Unless this amendment is accepted, it will happen much more frequently as video tapes become more generally used.
This morning I received a letter from the NSPCC. I shall not read out the various points made except to say that the NSPCC is deeply disturbed in case this amendment is not accepted. I also add to the noble Lord, Lord Paget, that the NSPCC says:Research suggests that children rarely lie about abuse. It is in everyone's interest that they should be interviewed as soon as possible after the alleged event while what happens is fresh in their minds".I support this amendment.
§ 9.15 p.m.
The Earl of Caithness
My Lords, I do not want to rehearse at great length the arguments which I placed before your Lordships when we debated this important matter at an earlier stage. We had a very full debate then, and it would serve little purpose for me to go over substantially the same ground twice. Indeed, it would be against the procedure of this House so to do.
The noble and learned Lord, Lord Silkin, explained that this revised amendment sought to meet some of the concerns expressed by your Lordships during our earlier debates. The 162 amendments to his new clause tabled by the noble Lord, Lord Paget, appear to go even further in that direction. Indeed, Amendment No. 30, in the name of my noble friend Lord Campbell of Alloway, addresses the same issue in a slightly different way.
These concerns, which I fully share, were that in the interests of justice an opportunity should be available for the child to be cross-examined at the trial on her evidence. The noble and learned Lord's amendment meets this point in preventing the judge from admitting a video recording unless he is satisfied that there will be a fair opportunity at the trial for cross examination. The amendments of the noble Lord, Lord Paget, similarly seek to enshrine the right of cross-examination in the clause, by the slightly different route of giving the accused an explicit right to insist on the child's attendance at the trial for that purpose.
The amendment of my noble friend Lord Campbell of Alloway is, with respect, a little less clear about whether such a right would exist but appears to envisage that there will be an opportunity for questioning at the time of the interview.
When we debated this matter in Committee, I offered the view that we should judge any proposed change to the law on two criteria: first, whether it would actually be in the best interests of the child; and, secondly, whether it was in the interests of justice. The amended version of the noble and learned Lord's new clause goes a long way to meet the concerns which were expressed on the second count. If the accused had a guarantee that if the recording were admitted and that the child would attend the trial and be available for cross-examination, no one could complain that the procedure was unjust. I am grateful to the noble and learned Lord for taking on hoard the importance of that point.
But what of the first count? That point was touched on by my noble friend Lady Faithfull. Would a procedure which guaranteed the right to cross-examine actually make matters easier for the child? In some cases the knowledge that the video recording could be admitted as evidence might just tip the balance between a guilty and a not guilty plea. Unless that happened, though, it seems extremely unlikely that counsel for the defence would ever let the opportunity for cross-examination pass. He would not be doing his duty to his client if he did so.
That being so, it seems to me that it is a moot point which of the two experiences would be less distressing for the child: watching the tape and then facing hostile questions on it by defence counsel, or first being led through the evidence by counsel for the prosecution. There is also the point which I made in Committee which I do not think can be lightly disregarded. It is highly unlikely that the child would be able to tell a completely consistent story on the two different occasions, separated in time as inevitably they would be. It is understandable that discrepancies would emerge. Everyone's memory, adult or child, is slightly imperfect.
It is true, as one commentator has pointed out, that it is already possible for previous inconsistent statements to be referred to by the defence and be the subject of cross-examination. But it seems to me much more likely that this would happen if a 163 particular statement—the video recording—was the whole focus of the trial. The effect on the child of having counsel pick holes in an account which was already some way off in her recollection could, I suggest, be more distressing than first being taken through her best recollection of the events sympathetically by counsel for the prosecution, and then facing cross-examination. In the latter case, the child's first experience of the trial would be of questioning by someone who appeared to believe her story. With the recorded evidence, her only experience would be of the defence counsel's apparent disbelief.
It therefore seems to me, as I have said, to be a moot point whether the court appearance would be any less distressing for the child if the video recording were admitted than if it were not. For the reasons I have given, it seems quite possible that it would be more distressing. If that were my only doubt about the noble and learned Lord's proposal, I might be willing to accept it. But there is a more substantial worry, to which the noble Lord, Lord Hutchinson, referred in Committee, and to which the noble and learned Lord, Lord Simon of Glaisdale, referred this evening; that is, there is a distinction between clinical and forensic diagnosis. I put the matter slightly differently. I agree with the noble and learned Lord and the noble Lord that there is a distinction between, on the one hand, the type of interview which will contribute to the requirements of investigation and the judgments of doctors, social workers and child psychiatrists, and, on the other, the type of interview which will be acceptable as evidence in court. The first is likely to involve different interviewing techniques, including leading questions and prompting, which would never be allowed in court. It may, as the noble Lord, Lord Hutchinson, said, conceivably replace the first statement made to the police, but it is subject to constraints different from those to which evidence for court purposes is subject.
The conclusion that I drew in our earlier debate (which has not been challenged today), is that the differences are so great that two interviews rather than one would be necessary—one to meet the purposes which experiments such as the one going on in Bexley serve; and the other against the possibility that criminal proceedings would result. I emphasise the word "possibility", because in many cases the matter never comes to court and is resolved in other ways. But if the scheme which the movers of these amendments favour were implemented, additional interviews, in a form suitable for use in court, would be conducted in cases where there was any prospect of a court appearance at the end of the line.
All of us who have taken part in this debate have had the best interests of the child victim uppermost in our minds. It is not a debate between those who would like to reduce the ordeal suffered by the child victim and those who would not. My fear is that we might, if we accepted these amendments, make matters worse, by creating a structure within which the child had to undergo two interviews shortly after the assault, and at the end of the day still had to come to court to be cross-examined.
164 The noble and learned Lord, Lord Silkin of Dulwich, referred to the experience in America. Under today's systems, it is possible for a video recording to be made and shown to the accused. That video recording cannot be shown in court under present circumstances because it would not abide by the rules of the court, and, therefore, a second interview would be necessary, which could lead to a more distressing situation for the child.
I hope that your Lordships will shortly accept amendments to remove the strict requirement that the unsworn testimony of a young child must be corroborated. The Bill already contains provisions for children's evidence to be given by closed-circuit television. These are two important changes and demonstrate our willingness to contemplate and promote reform in this difficult area. We can make them with confidence. We can also applaud, and watch with interest, the developments which have been taking place in the video recording of interviews with child victims for the range of purposes I have described. The discussion begun in our debates on this Bill should no doubt continue. But even after today's debate, I do not believe that we could be sufficiently confident about the outcome to move towards the use of video recordings as the primary evidence in trials of these distressing cases.
§ Lord Silkin of Dulwich
My Lords, I at least detect that the noble Earl and those of us who have put these amendments forward are moving sensibly towards one another. I am grateful for the view expressed by the Minister that the proviso to subsection (3) meets one of the major points that he put forward on the last occasion. The second one is in his view fairly well balanced, to the extent that if he were concerned with those two alone he might be prepared to accept the amendment as it stands. I understood that to be what he was saying.
What seems to cause his final hesitation is what I consider to be seeking the ideal in a way which makes it the enemy of the valuable. Any system of this kind is bound to have its own built-in difficulties. Certainly there are difficulties in the system which we have already accepted in the clauses now in the Bill. The noble and learned Lord, Lord Denning, referred to them on the last occasion and I need not repeat them.
I do not see that those difficulties are going to be so easily resolved that they solve the child problem. We should be looking constantly for improvement and I gathered from what the Minister said that we are in agreement with one another.
As regards the real problem—namely, the difference between the kind of video record which one would ideally want for the purposes of evidence and what might be the first statement or complaint made by the child—I am not sure that there is very much difference between that situation and the situation which one constantly has in relation to any criminal case. A complaint is made by somebody, whether a child or not, and, when sufficient material is available to the police, they take down the evidence in what one might call forensic form and the trial is likely to be based upon it. In practice that may well be the evidence which appears before the magistrates' court in due course.
165 I do not think it is necessarily the real objection that the child may be asked at that stage to repeat what he has already said. The suggestion is that the trauma of having to say it will be that much greater. It seems to me that that is very likely to happen whatever method is used for producing the evidence before the court. It is likely to happen in the case of the child who gives evidence in person or gives evidence in accordance with the procedures now in the Bill.
In the initial stages the child is likely to have to repeat what he is saying. He is likely to be asked questions. The important thing is that he should be asked questions by someone with experience of dealing with children, someone with the necessary sensitivity and someone who knows what will be required for the purposes of evidence. The importance of the code of practice which will develop will clearly be very great as this method becomes more acceptable in the future. It will dictate the way in which the child is treated.
It seems to me that at this hour of the night I should not really be testing the opinion of the House properly by seeking to obtain a vote. My feeling is that the debate has been a useful one as a prelude to what I am sure will be a succession of debates in another place. In the course of those debates I hope that agreement will be reached between those who want this procedure to be adopted and the Minister and the Home Office, who are clearly interested in obtaining the right result if the right result can be obtained.
It has seemed to me that those who took part in the debate this evening, almost without exception, were in agreement with the principle of what we are proposing. I suspect that there will be a very wide measure of support for the principle when the matter goes to another place, as I am sure it will. In those circumstances I hope that I am not, in saying this, disappointing those who have put their name to the amendment and who have worked very hard to get the best answer possible, I think it would be in the best interests of getting the right solution at the end of the day if I were to ask leave to withdraw the amendment.
§ The Deputy Speaker (Lord Murton of Lindisfarne)
My Lords, does the noble Lord, Lord Paget, desire to press his amendment?
§ Amendment to the amendment, by leave, withdrawn.
§ [Amendments Nos. 28 and 29 not moved]:
§ Amendment, by leave, withdrawn.
§ 9.30 p.m.
Lord Campbell of Alloway moved Amendment No. 30:
After Clause 30, insert the following new clause?—
§ (".—(1) In any proceedings before a Magistrates' Court enquiring into an offence as examining justices to which section 31(2) applies, or in any other criminal proceedings, a video 166 recorded interview with a child under the age of 14 may, subject to grant of leave in accordance with subsection (2) of this section, be tendered in evidence and if so tendered shall be admissible as evidence on any relevant matters in issue in such proceedings.
§ (2) Leave under subsection (1) of this section shall not be granted.
- (a) a tape of such evidence certified as accurate, complete and unaltered by the maker thereof shall have been lodged with the Court, and copies shall have been supplied to all parties;
- (b) all persons who conducted or arranged for the conduct of the interview shall have provided signed statements to the Court and copies shall have been supplied to all parties as to the manner of conduct of the interview: and all such persons are available to give evidence and be questioned if so required by any of the parties;
- (c) an opportunity shall have been afforded to the parties to question the child in person, and to the child to give evidence in person;
- (d) in the opinion of the Court taking into account all the circumstances of the case any prejudicial affect of such evidence is outweighed by its probative value;
- (e) in the opinion of the Court there has been substantial compliance with the provisions of such Code of Practice as shall have been issued by the Secretary of State under subsection (3) of this section.
(3) The Secretary of State shall issue on the date upon which this Act takes effect, and thereafter may issue from time to time, Codes of Practice for the conduct and recording of video interviews with children in connection with this section.
(4) Crown Court Rules and rules made in accordance with provision of the Magistrates' Courts Act 1980 may be made for the purposes of this section.").
§ The noble Lord said: My Lords, at this hour I shall be brief. This is purely a probing amendment to seek to canvass some of the views of your Lordships. I shall make very few points on it. The first point is that we are concerned only with the admissibility of evidence—never to be confused with the burden of proof or the standard of proof for fear of ending up in total confusion. Secondly, the question is whether the proviso to Amendment No. 26 in subsection (3) affords a sufficient safeguard for the accused if we were to implement the broad principle which these amendments envisage.
§ Having listened to what was said by other noble Lords at Committee stage, I was satisfied—of course, it is entirely a matter for your Lordships—that the safeguards of this proviso were not adequate. In this area there are considerations which one simply has to accept as part of the facts of life. Children are open to suggestion. They wish to give pleasing answers. The toy ploy with the social workers or whoever it may be is open to serious reservations without the safeguard which I have sought to set out in the amendment. There is scope for the—albeit well-intentioned—error on the part of social workers, even child psychologists and psychiatrists. I do not want to make capital out of Cleveland, but there is a certain aura of disquiet about experts in this sphere. I think it is important that safeguards should be adequate and true safeguards for a fair trial for the accused.
§ Therefore I have tabled safeguards, first, to extend under subsection (1) the area of incidence to the examining justices; and, secondly, under subsection (2), to have the tape certified by the maker as accurate—a point that was taken up at Committee stage—with copies for the accused and all parties and to have statements from whoever arranged the conduct of the interview, or conducted it, available to the court and to the parties.167
§ Then there is the question of the child having to give evidence, which is provided for in subsection (3) of Amendment No. 26. But there is absolutely no safeguard as to subsection (2)(a) or (b), which is a matter of crucial consequence. You simply must have the statements of the social workers who conduct the interview. You must have them there. You must be able to cross-examine them in depth if you are defending an accused. There is no other way, and it must be mandatory.
§ Furthermore it is no use just referring to a code of practice without designating. It is a legal incidence. It is a fact. You cannot just refer to a code of practice in the air. You must make up your mind what legal effect it must have. I propose that it should be mandatory upon the Secretary of State to publish this code of practice at the time the Act comes into effect; and that, if there has not been substantial compliance with it by the social workers, the police or whoever it is, evidence should not be admissible. I stress that we are concerned with the admissibility of evidence, not with the burden of proof and not with the standard of proof. We are primarily concerned with fair trial in this country.
§ Baroness Faithfull
My Lords, I should like to take up one point made by the noble Lord, Lord Campbell of Alloway, which has been referred to by the noble and learned Lord, Lord Simon of Glaisdale. I do not think that those of us who support the use of the video thought of social workers as being the people to conduct the initial interview. Most of us imagined that the initial interview would be carried out probably by a policewoman or policeman who was well trained in this area and one other person acceptable to the court. We had not imagined that it would be a social worker involved in the case.
§ Lord Kilbracken
My Lords, I want only to ask the noble Lord if he can tell us whether a word has been left out at the end of the first line of subsection (2). I believe that the word "unless" should be inserted there.
§ Lord Campbell of Alloway
My Lords, inevitably the word "unless" was lost in the printing. I gather that there was some complaint about this earlier today. I make no complaint. It is only a probing amendment.
§ Lord Simon of Glaisdale
My Lords, on examining the drafting, paragraphs (a) and (b) seem to need the word "unless" but paragraphs (c) and (d) seem to need the word "if".
The Earl of Caithness
My Lords, my noble friend has explained with his usual clarity the purpose of Amendment No. 30. It differs in several respects from the amendments that we have just been discussing. There would, as I understand it, be more structured arrangements for the conduct of the interview and a formal opportunity for the parties to question the child, presumably at the time of the interview. What I find less clear—and this bears on the debate that we had on earlier amendments—is whether the 168 defendant would be able to insist that the child attend the trial for cross-examination.
I have two doubts about this. The first is that, if I am right in thinking that there would be no guarantee for the accused that the child would attend the trial, all the objections which were raised during our discussion of an earlier amendment in Committee would come into play. The second is that a more formal arrangement for the interview itself with, for example, those responsible for its conduct being themselves made available for questioning, would take us quite a long way from the immediacy and the informality that the noble and learned Lord, Lord Silkin, and my noble friend Lady Faithfull saw as one of the main attractions of their proposal.
If there were an opportunity for questioning on behalf of the accused at that stage, I am not by any means sure that there would be any reduction in the ordeal suffered by the child. Indeed, my noble friend Lady Faithfull picked up another point about social workers carrying out the interview to which my noble friend alluded.
I do not want to discourage my noble friend but I think that his amendment highlights the diversity of view that still exists on this subject, and, if anything, bears out my view that we should approach it with extreme caution. Having said that, I should like to read again all that has been said on this important matter tonight and to consult my right honourable friend the Home Secretary. We believe that it is part of an ongoing debate that is by no means finalised, because the more that we look into this matter the more problems we see, and perhaps the more we can overcome some of the problems. The matter is by no means finalised and we still have quite a lot of discussing to do, and I am grateful for your Lordships' contribution tonight.
§ Lord Campbell of Alloway
My Lords, I accept everything that my noble friend the Minister has said. I am grateful to him for his patience and for the patience of your Lordships at this hour of night in having deigned to consider this amendment. The position simply is that I feel in my bones we have to move ahead. We have to move some way somehow to redress the balance to protect the child against the molester.
Each time I seek to move, I seem, as do your Lordships, to find that we come up against the brick wall of the question: how can we have a fair trial? I shall never return to this subject. I feel defeated by it. I truly wished to contribute. Now, having listened to everthing that has been said, I feel I have no further contribution to make. I beg leave to withdraw the amendment.
The Earl of Caithness
My Lords, before my noble friend sits down I hope that he will reconsider those remarks. He has an important contribution to make, as do all your Lordships, to this important debate now and in the future.
§ Amendment, by leave, withdrawn.169
§ 9.45 p.m.
Lord Silkin of Dulwich moved Amendment No. 31:
After Clause 30, insert the following new Clause:
§ ("Evidence of child of tender years.
§ .—(1) In section 38 of the Children and Young Persons Act 1933, the words "and understands the duty of speaking the truth" shall cease to have effect and there shall be substituted the words "and appears to be capable of giving truthful evidence".
§ (2) In the said section 38, the proviso to subsection (1) thereof shall cease to have effect.
§ (3) In any criminal proceedings in which a child of tender years (whether sworn or unsworn) has given evidence or a video recorded interview has been tendered in accordance with section (Video recorded interviews admissible as evidence), the judge shall consider whether in the light of all the evidence (including evidence as to the age of the child and the nature and seriousness of the offence charged) he should—
- (a) withdraw the case from the jury on the ground that a conviction would be unsafe or unsatisfactory; or
- (b) warn the jury of the danger of convicting on such evidence if uncorroborated.
§ (4) The power of the judge to withdraw the case in accordance with this section shall not affect his right to hold that there is no case for the defendant to answer.").
§ The noble and learned Lord said: My Lords, with this amendment it is proposed to take Amendments Nos. 32, 134 and 140. Amendment No. 31, like the last one that I moved, arises out of the discussions in Committee when I moved an amendment in similar form to, though not identical with, this one. The noble Earl, though objecting to some parts of it, went so far as to say that in principle the Government viewed it favourably. That view has been shown by the fact that the noble Earl himself has put down the following amendment, Amendment No. 32, which goes at least part of the way towards meeting the points in Amendment No. 31.
§ Perhaps I may briefly explain the purpose of this amendment and the points of difference. The major purpose of Amendment No. 31 is to remove from the law two provisions in the Children and Young Persons Act 1933, now over 50 years old, which appear to be out of accord with modern ideas, particularly in the light of knowledge gained about children. The proviso to Section 38 of the Act is dealt with in subsection (2) of our new clause which states that the proviso ceases to have effect. The noble Earl's Amendment No. 32 sets that out at length and explains the provision more clearly and precisely. It deals with the provision for corroboration.
§ In subsection (1) of the Government's new clause and subsection (2) of our new clause we are at one except that we differ over the wording. I do not think that there is any difference in the substance. Subsection (2) of the Government's new clause, which also deals with corroboration, may go further than our proposal. The basis of our amendment is contained in subsection (3)(b) where we suggest that in certain circumstances the judge may think it necessary to warn the jury of the danger of convicting on the evidence of a young child if uncorroborated. The Government's proposal is that any requirement of corroboration should be removed altogether.
§ The substantial difference between us occurs in subsection (1) of our new clause where we wish to remove the provision of the 1933 Act concerning the necessity for a judge, before allowing a child to give unsworn evidence, to ensure that the child 170 understands the duty of speaking the truth. Our view is that that is unrealistic and that it is not an up-to-date approach to the difficulty in which one finds oneself. We wish to change that expression so that the duty of the judge is merely to be satisfied that the child is capable of giving truthful evidence. That seems to us to be more in accord with what is now understood about children. We hope that the Government will agree with our view that the concept of a child understanding the duty of speaking the truth, while it may apply perfectly well to an older child, becomes somewhat meaningless when one is dealing with a young child of three, four or live. The concept of appearing to be capable of giving truthful evidence is easier to satisfy and it does not require knowledge by the child of the kind of technicalities involved in the law as it stands.
§ I am not concerned with which of the two amendments should be accepted by the House, either the Government amendment or our own. However, I would be concerned if the effect of subsection (1) were not taken into account in one way or another. Therefore, I ask the Minister, when he comes to give the Government's view whether he is prepared to look at the effect of our subsection (1) and give an undertaking that something which covers the point will be put into the Government's amendment at a later stage if at all possible. If he is prepared to do that, I think there will be sufficient agreement between the two amendments for me not to pursue ours and to accept the Government's. In the meantime I beg to move.
§ Lord Denning
My Lords, I am anxious about both these amendments. I have tried many cases in which young children were concerned and my experience is similar to that of many judges over the centuries; namely, that a child's evidence is most unreliable unless it is corroborated or supported in some way. A child may imagine things and invent situations. Parents and other adults may make suggestions to the child and when it comes to the trial six or 12 months later the truth may sound very different.
I suggest that our forefathers were right. The judges and those who framed the law in 1933 were right. One should not rely on a child's unsworn evidence unless it is corroborated in some material particular. Furthermore, that evidence should not be relied upon unless in any event a warning is given to the jury to bear in mind that it comes from a young child and that they should not convict unless they are sure. The experience of judges down the centuries has surely proved right and has resulted in the existing law, which protects the accused from an unjust conviction.
When I supported the earlier amendment, I was under the impression that these safeguards for the accused would still remain. These amendments take away the safeguards of the accused against an unjust conviction. I am very nervous and anxious about these provisions being taken into the law and removing a safeguard which the law gives to an accused person.
§ Lord Edmund-Davies
My Lords, in view of the Government's amendment, Amendment No. 32, and considering the lateness of the hour, I gratefully accept the observations made by the noble and learned Lord, Lord Silkin, and do not desire to add any words of my own.
§ Lord Hutchinson of Lullington
My Lords, I am unhappy about both these amendments. I ask the Government, as one always tends to do where children are concerned, to hold their hand before coming to any firm conclusion. I go along with the amendments in that I should have thought that we had reached a stage in relation to the evidence of children at which they should be allowed to give straight evidence—there should be no requirement for the complexities of corroboration at all.
To those who practise in the criminal courts, the complexities of corroboration have become quite idiotic; namely, whether one child can corroborate another child, whether a sworn child can corroborate an unsworn child, and so forth. I should have thought that we had now reached the stage where a child can give evidence.
If a child can give evidence, it seems to me of overwhelming importance that in every case a judge should warn the jury about the dangers of accepting that child's evidence without confirmation from any other source. As I said at Committee stage, it seems to me that a child's evidence is very similar to evidence of identification, and that unbeknown to most people identification evidence is bound to be very dangerous and suspect because of human error. Moreover, all the experience in the courts is that identification evidence requires some confirmation because human error is so enormous. Surely, the whole experience that all of us who deal with children have had is that the evidence of children is liable to be unreliable, It is important that any jury, testing the evidence of children, should be so warned.
It seems to me a great mistake, in Amendment No. 31, to put the onus on a judge to decide whether in case A he should warn the jury, or whether in case B he should not warn the jury. How on earth would any Court of Appeal be able to decide whether a judge ought to have warned the jury in case A or whether he ought to have done so in case B? Surely there must be a straightforward rule that, in all cases, a judge is under an obligation to warn the jury of the dangers of accepting the evidence of children; but the child should be entitled to give the evidence. I would have thought that this was a simple situation and one which, perhaps, could be adopted eventually.
Equally, in Amendment No. 32, I would be very much opposed to subsection (2) which abrogates the requirement for a warning when a child gives evidence: that I would be entirely against. I would have thought it would have been exactly the opposite: get rid of the corroboration but insist on some sort of warning by the judge.
The Earl of Caithness
My Lords, it is most disappointing to find the noble and learned Lord, Lord Denning, teaming up in opposition to me with the noble Lord, Lord Hutchinson of Lullington—a formidable duo. I would have hoped that they would raise their concern when we discussed this precise point on 22nd October at Committee stage. Perhaps I can recap briefly on what I said then. I said that we had come to the conclusion that the little amount of comparative research that has taken place indicates that children are as good witnesses as adults. This is a result of the literature review of the scientific evidence for and against the present corroboration requirement which my right honourable friend the Home Secretary set in hand earlier this year. Therefore, this is a decision that has not been set in hand lightly or without due consideration. I hope that what I go on to say will go some way to alleviate the concern of both the noble and learned Lord and the noble Lord, Lord Hutchinson of Lullington.
The new clause that the noble and learned Lord, Lord Silkin, proposes would repeal the existing requirement that the unsworn evidence of a child must be corroborated. In replying to him, I should like to speak also to the amendments in my name, Amendments Nos. 32, 134 and 140, which we shall come to shortly. As I said in the earlier debates, I accept the principle that the unsworn evidence of a child should be received on the same basis as evidence from an adult. We reached this view, as just recounted, with the assistance of the literature review, commissioned by my right honourable friend the Home Secretary, of the relevant research material. Thus, the new clause I have tabled removes this requirement of corroboration, as does the amendment tabled by the noble and learned Lord opposite. We are agreed on that principle.
There are, however, some differences between us that I would like to draw to your Lordships' attention. I shall also try to counter some of the arguments put so persuasively by the noble and learned Lord. Subsection (2) of my amendment would apply the existing strictures on the use of uncorroborated evidence from adults to uncorroborated evidence given by children. This is because I am not convinced that the case has been made out for changing the rule that in the case of a sexual offence the judge must warn the jury of the need for caution before convicting the defendant purely on the strength of uncorroborated evidence from the complainant. Under the existing law this applies where the complainant is an adult or a child.
The noble and learned Lord's new clause would make such a warning optional if the witness was a child and I do not believe that that would be right. I propose in my amendment that in a sex case the judge will warn the jury of the potential dangers involved in convicting a man, if the only evidence is from the alleged victim, on exactly the same basis as if the victim is an adult. I hope that that goes some way to reassuring the noble Lord, Lord Hutchinson, and the noble and learned Lord, Lord Denning. But if the jury believe that the child's story is correct, I see no reason why they should be forbidden to bring in a 173 guilty verdict. That is the first reason why I would ask your Lordships to support my amendment rather than the noble and learned Lord's.
The second reason centres on the amendment in the noble and learned Lord's clause to the existing requirement in Section 38 of the Children and Young persons Act 1933, that before a child's unsworn evidence could be received she must understand the duty of speaking the truth. The noble and learned Lord has taken the point from our earlier debates that there must be some requirement of this kind and his new clause replaces those words with:appears to be capable of giving truthful evidence".The existing test has not proved unduly restrictive and I hesitate therefore to replace it with a new one, particularly one that looks on the face of it to be much harder to apply.
It is one thing for a judge to ask a child whether she understands the duty of being truthful and to come to a decision based on her answer. It is quite another thing to ask a judge to decide whether a child looks truthful or not, as this amendment appears to do. It is for those two reasons that I prefer the approach of the Government's amendment. I hope that the noble and learned Lord will accept my explanation and be willing to support my amendment rather than his when it comes to the point. The important thing, as I am sure the noble and learned Lord will agree, is that the strict corroboration requirement should go and I am glad that we have been able to find common cause in that.
§ 10 p.m.
§ Lord Silkin of Dulwich
My Lords, may I make one correction in what the Minister said? Subsection (1) of the amendment which I moved has nothing within it which requires a judge to make any decision as to whether the child is, in fact, truthful. The requirement is that the judge should be satisfied that it appears to him that the child is capable of giving truthful evidence, which is a very different thing.
I find it very difficult to see why it should be suggested that when the test is having regard to the child's age, and the other factors inherent so far as the child is concerned, that is a more stringent test than the existing test of understanding the duty of speaking the truth, which brings into the matter such concepts as that of duty itself which 1, and those who support this amendment, consider to be a very difficult one.
The Minister suggested that in practice it has not produced a great deal of difficulty. My understanding is that it has produced difficulty. At any rate, it seems to me that the alternative we suggest is a more realistic one and I find it difficult to see why that should prove more difficult to apply. I should have thought it would be easier to apply.
However, at this hour of the night I shall not argue at very great length over the amendment. I hope that the Minister will look at that point again. He has been very willing to examine the arguments that have been put forward as regards that point. There has been a difference of view on other points, including points which are common to the Minister and ourselves. But 174 so far as concerns this point, there does not seem to have been expressed any real difference other than that expressed by the Minister himself. Perhaps he might at least take the view that there is not strong opposition to it. I can see that at this hour of the night one would not expect a succession of speakers on the point. But there it is. If the Minister would look at that again I should be very grateful. Subject to that, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
The Earl of Caithness moved Amendment No. 32:
After Clause 31, insert the following new clause:
§ ("Abolition of requirement of corroboration for unsworn evidence of children.
§ .—(1) The proviso to subsection (1) of section 38 of the Children and Young Persons Act 1933 (under which, where the unsworn evidence of a child of tender years admitted by virtue of that section is given on behalf of the prosecution, the accused is not liable to be convicted unless that evidence is corroborated by some other material evidence in support thereof implicating him) shall cease to have effect.
§ (2) Any requirement whereby at a trial on indictment it is obligatory for the court to give the jury a warning about convicting the accused on the uncorroborated evidence of a child is abrogated in relation to cases where such a warning is required by reason only that the evidence is the evidence of a child.").
§ The noble Earl said: My Lords, I beg to move.
§ Lord Wigoder
My Lords, as this amendment is being moved I wish to say a few brief words in support of what my noble friend Lord Hutchinson of Lullington said. It is simply this. I believe that any judge who has had any experience on the Bench, any experience at the Bar or any experience as a parent will inevitably and invariably want to warn the jury, in any case in which there is a child giving evidence, of the possible dangers involved. I feel that very strongly and I know that my noble friend does too. Clearly the noble and learned Lord, Lord Denning, feels the same. In those circumstances, if the noble Earl feels that he must move the amendment at this stage we will really have no alternative but to divide the House against him.
In view of what has been said in your Lordships' House this evening I ask the Minister whether he will consider taking the matter back and reflecting upon it before the next stage.
The Earl of Caithness
My Lords, it surprised me that the noble Lord, Lord Wigoder, used the words he used. There was a very good opportunity in Committee on 22nd October when those exact points could have been raised. Of course I shall look at this matter again, but I do not think that at this stage, having made the commitment I made in Committee, it would be right for me to withdraw this amendment.
§ Lord Hutchinson of Lullington
My Lords, the Minister said that there was ample opportunity to make these points. I know that I have always taken the view that when children are giving evidence a warning should be administered to the jury. I am perfectly sure, without going back to that occasion, that I took that view in Committee. The Minister really should not suggest that this is a completely new view which is being put forward by this side of the House.
175 It is a view which I have consistently held throughout the time I have had to deal with children giving evidence. It is perfectly clear to anyone with experience that a warning must be given about children's evidence. Children's evidence is bound to be unreliable. The possibility of its being unreliable must be placed before a jury. I must ask the Minister to think again about whether he wishes to press the amendment.
The noble and learned Lord, Lord Silkin of Dulwich, has been extremely co-operative and has withdrawn his amendment. Would it not be proper for the Government to withdraw their amendment too so that further thought may be given to this matter?
§ Baroness Seear
My Lords, the Minister referred to certain research evidence which he has received. I do not suppose that many of us in the House have received that evidence. It would be extremely useful and helpful if we knew more about that research evidence. As all of us who have worked in the research field know, there is research evidence and there is research evidence. Some of it is better evidence than other evidence.
The Earl of Caithness
My Lords, with the leave of the House, I must say to the noble Lord, Lord Hutchinson of Lullington, that I have before me a copy of the Official Report of 22nd October. That shows that the only two people who took part in the debate were the noble and learned Lord, Lord Silkin of Dulwich, and myself. The noble Lord, Lord Hutchinson of Lullington, may be absolutely right. I have no reason to doubt that he felt strongly on this point. However, there was an opportunity in Committee to raise those points, but I regret that he did not take it.
As regards what the noble Baroness, Lady Seear, said, my right honourable friend the Home Secretary instigated a literature review. That means that it was a review of all the evidence available before us. As the noble Baroness rightly said, there is evidence and evidence. Due weight was given to that fact. However, there are copies of the research evidence in the Library of the House; they have been there for some time. In all those circumstances it would be wrong for me to withdraw the amendment now.
The noble and learned Lord, Lord Silkin of Dulwich, withdrew his amendment, as the noble Lord, Lord Wigoder, said. That is because we are on common ground and dealing with two fine points within that common ground.
§ Lord Silkin of Dulwich
My Lords, I think the Minister is right in insisting on the amendment. All I want to add is that the argument between the Minister and those on the Alliance Benches may suggest to him that the somewhat softer wording of the amendment which I have withdrawn may be better than the absolute wording of his clause. However, that is something which he can consider in the future.
§ 10.12 p.m
§ The Deputy Chairman of Committees (Lord Murton of Lindisfarne)
My Lords, the Question is that the amendment be agreed to. As many as are of that opinion will say "Content"; to the contrary "Not Content". I think the "Contents" have it. Clear the Bar.
Tellers for the Not-Contents have not been appointed pursuant to Standing Order No. 51. A Division therefore cannot take place, and I declare that the Contents have it.
§ 10.15 p.m.
§ Clause 32 [Scope of Part IV]:
Lord Wigoder moved Amendment No. 33:
Page 22, leave out lines 15 and 16 and insert ("not be made unless a draft of it has been laid before Parliament and approved by resolution of each House.")
§ The noble Lord said: My Lords, I move the amendment on behalf of my noble friend Lord Meston. This is a comparatively short matter. It deals with the question of lenient sentences, on which noble Lords had an interesting debate in Committee. Your Lordships will remember that on that occasion it was proposed that the Attorney-General should make the applications to the Court of Appeal, that he would make only a limited number of applications in the course of a year and that the particular classes of case in which he would make such applications would be severely restricted.
The way in which the Government have sought to go about that is to say in Clause 32(3):
The Secretary of State may by order made by statutory instrument provide that this section shall apply to any case in which sentence is passed on a person for an offence triable either way of a description specified in the order".
§ The clause goes on to say that such an order should be subject to annulment in pursuance of a resolution of either House of Parliament. The power is being given to the Secretary of State by statutory instrument to decide to what descriptions of cases the powers of appealing against sentence to the Court of Appeal should relate. That is an important power, which will much affect the operation of the section.
§ One can well understand the difficulty the Government face in trying to legislate now to prescribe exactly what kind of cases should be the subject of the procedure. The problem with such delegated legislation is always the same; namely, that the Secretary of State has to make an order and the two Houses of Parliament can either accept or reject it; they cannot modify or seek to vary it in any particular. That is exceptionally relevant in a case of this kind where the order will obviously contain what may be a long list of particular types of offence.
§ To get round the problem—one that arises not only in this Bill—the amendment proposes that first there shall be a draft of the order laid before Parliament to be approved by resolution of each House. In other words, following the procedure used on other occasions—for example, in relation to the Prevention of Terrorism Act—a draft order is laid, a debate takes place, the Minister listens to the debate and examines it afterwards and can vary the final order in 177 accordance with the views expressed in the House if he so wishes. One then avoids the House having to come to a decision in the first instance to take or leave the order en bloc. That appears to us on these Benches to be a sensible and helpful proposal. I beg to move.
§ Lord Elwyn-Jones
My Lords, I support what has been said by the noble Lord. This matter relates to Clause 32, which was a highly contentious part of the Bill. Therefore, from this side of the House, one approaches it with some suspicion. However, we were defeated when the matter came to an issue. It is nevertheless important that action taken under Part IV should receive the maximum consideration possible by both Houses of Parliament.A statutory instrument containing an order under this section shall be subject to annulment in pursuance of a resolution of either House of Parliament".The amendment proposes that a draft shall be laid before Parliament and approved by resolution of each House.
I am sorry that the noble Lord, Lord Meston, is not here, because he made a very powerful speech recently on the tendency of this Government to legislate by statutory instrument, with the happy consequence, of course, of avoiding the risk of defeat, especially in your Lordships' House. Therefore, if we are going through a regime of important changes introduced in this way by statutory instrument, we should be very watchful indeed to see that, on a matter of any importance, each House, and not just another place, should deal with it. I venture to suggest that the other place will share my view, and it is for those cautionary reasons that I join in supporting the amendment.
§ Lord Hutchinson of Lullington
My Lords, I too support this amendment. It is a great pity that this debate is taking place at this late hour, because it raises a very important matter of principle. It is a matter which has recently been highlighted in an article in The Times newspaper in which it was suggested that this Government, as a matter of policy, intend to legislate more and more by the use of secondary legislation, thus avoiding, as the noble and learned Lord said, giving the Opposition the opportunity to amend or change in any way what is contained in that secondary legislation. It will be of great help to the House if the Minister is able to say that the suggestion made in that article in The Times is not correct, that there is no such policy decision and that in future there will be a draft laid before Parliament so that the matter can be debated and amendments put down to it.
The Earl of Caithness
My Lords, perhaps I may assure the noble Lord, Lord Wigoder, that the extension of the procedure in Part IV of the Bill to offences other than purely indictable ones is not a step which my right honourable friend the Home Secretary would take lightly. I have, I believe, made it clear in debates on these provisions in your Lordships' House that the new power will be used sparingly. It would be extended only if in the light of experience it proved necessary, desirable and practicable to do so.
178 The noble Lord argued that such an extension would nonetheless be a sufficiently serious matter to warrant the high degree of parliamentary scrutiny implied by the affirmative procedure. While I shall, of course, as always pay careful attention to the views of noble Lords, I should have thought that the negative procedure would be suitable in this case. An order made under this clause would not introduce substantial new matter; the principles and procedures to be enacted by Part IV of the Bill have been, and I am sure will continue to be, extensively debated during the Bill's parliamentary passage. An order would simply apply these to additional categories of offence and would in no way vary or derogate from them.
Your Lordships may find it helpful to consider a recent instance in the area of criminal justice where an important and far-reaching order-making power in an Act is subject to the negative procedure. This is the power in Section 22 of the Prosecution of Offences Act 1985 to prescribe custody and overall time limits in criminal proceedings. In that case, as in this, the power itself was subjected to detailed scrutiny during the Bill's passage and, although the provisions themselves were left to be dealt with by subordinate legislation, it was not thought necessary to require an affirmative resolution.
Perhaps I may remind the House that an order which is subject to the negative procedure may be prayed against and may be the subject of a debate in your Lordships' House. I reassure the noble and learned Lord, Lord Elwyn-Jones, that, as the clause indicates, the statutory instrument is annulled if either House so resolves. Therefore, it will come to your Lordships' House. The noble Lord, Lord Hutchinson of Lullington, raised this as a matter of principle. I refer him to Erskine May, and in particular to the second report of the Joint Committee on Delegated Legislation—that is, HL 204 (1972/73). This states that there is no consistent pattern or direct connection between the subject matter of any particular instrument and the procedure to which it may be subjected. Therefore, I believe this is for your Lordships' House to decide depending on the matter before it.
I have heard what has been said tonight. It is right that I should take this matter away for further consideration with my right honourable friend, because, as I have said, your Lordships' views are important to his thinking. With that assurance, but without commitment, as your Lordships will appreciate, the noble Lord may see fit to withdraw his amendment.
§ Lord Wigoder
My Lords, yes, of course I will. I am obliged to the noble Earl for what he said. I was concerned not so much with the merits of the affirmative procedure as against the negative procedure as with the possibilities of proceeding by way of draft which is amendable in practice, because the Minister was able to listen to the debate before he put the order into its final terms. With those observations, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.179
§ The Earl of Caithness moved Amendment No. 34:
Page 22, line 21, at end insert—
("(6) In its application to Northern Ireland, this section shall have effect subject to the modifications set out in subsections (7) to (9).
(7) In this section—
offence triable only on indictment" means an offence punishable only on conviction on indictment;
offence triable either way" means an offence punishable on conviction on indictment or on summary conviction.
(8) For subsection (4) there shall be substituted—
(4) An order under subsection (3) above shall be a statutory rule for the purposes of the Statutory Rules (Northern Ireland) Order 1979 (and not a statutory instrument), and any such statutory rule shall be subject to annulment in pursuance of a resolution of either House of Parliament in like manner as a statutory instrument, and section 5 of the Statutory Instruments Act 1946 shall apply accordingly.
(9) The reference in subsection (5) to Part III of the Mental Health Act 1983 shall be construed as a reference to Part III of the Mental Health (Northern Ireland) Order 1986.").
§ The noble Earl said: My Lords, I will speak also to Amendments Nos. 37, 39, 135, 138, 139 and 149. These amendments provide for the technical adaptation of the provisions in Part IV of the Bill to enable their direct extension to Northern Ireland. I beg to move.
§ On Question, amendment agreed to.
§ Clause 33 [Questions as to sentencing]:
Lord Windlesham moved Amendment No. 35:
Page 22, line 24, leave Out from ("lenient") to ("and") in line 26.
§ The noble Lord said: My Lords, I speak also to Amendment No. 36. These amendments relate to the wording of the substantive new Clause 33, which enables the Attorney-General to refer to the Court of Appeal a sentence passed in the Crown Court which appears to him to be unduly lenient, provided that the Court of Appeal has granted leave.
This is not an attempt to reopen the principle of that controversial clause which was decided, after a Division, in Committee. I took part in that debate, as did others of your Lordships who are present this evening. I referred to the wording of sub-paragraphs (a)(i) and (ii) and, in particular, to the ambiguous reference to the wrong use of sentencing discretion by the trial judge. If your Lordships look at the preliminary words of Clause 33, you will see that it states:
.—(1) If it appears to the Attorney General—
(a) that the sentencing of a person in a proceeding in the Crown Court has been unduly lenient because the judge—
§ Amendment No. 35 leaves out all words after "lenient" until the word "and" in line 26. I submit that the idea of a judge exercising his discretion wrongly must be open to doubt. Surely it is possible to envisage circumstances in which the judge, having heard all the evidence and having seen the defendant throughout the trial, may exercise his sentencing discretion properly although he arrives at a sentence which is out of line with prevailing levels. Importing moral concepts of right and wrong in this context seems misconceived and could be challenged in the courts. The draftsman may have had in mind, in choosing these words, what is just and what is unjust. 180 But the English language allows words different meanings. The words "right" and "wrong" may as easily be taken to mean what is correct or what is incorrect; what is proper and what is improper.
§ Turning to paragraph (a)(ii), I accept that Clause 33 should specify that if the judge has erred in law as to his powers of sentencing the Attorney-General should have grounds to refer the sentence to the Court of Appeal. If the judge thinks mistakenly, for example, that the maximum sentence for an offence is two years when in fact it is five years, and he sentences a convicted offender to what he believes to be the maximum sentence because of the gravity of the crime, clearly there is a strong case for the Court of Appeal to put the error right.
§ That is the purpose of Amendment No. 36 because it retains the reference to errors of law, but it rearranges that reference. That provision appears later in the clause. As I explained at the outset in moving this amendment, the words after "lenient" down to "powers of sentencing" in sub-paragraphs (i) and (ii) disappear completely.
§ The noble and learned Lord the Lord Chief Justice made the case for the omission of these words in subsection (1)(a)(i) and (ii) when he spoke at the Committee stage. He referred to the possibility of misconstruction.
§ When my noble friend the Minister of State replied to the debate he said that he was prepared without commitment to look again at the argument that had been put to him. I hope that in the intervening period he has had an opportunity to do so.
§ We should not forget, late as it is this evening, that this clause is an historic change in our criminal law and procedure. It is most important that we should get the wording right.
§ 10.30 p.m.
§ Lord Ackner
My Lords, I, too, should like to support the amendment. If the words which are sought to be excised are left in, they provide a quite unnecessary hostage to the ingenuity of counsel which, although not unlimited, is still, I am happy to say, extensive. For that reason it would be very desirable to make the matter clear.
The Earl of Caithness
My Lords, as my noble friend has said, these amendments remove from Clause 33 words which troubled the Committee at an earlier stage. The causes for concern were most persuasively expressed by my noble friend and by the noble and learned Lord, Lord Lane. Indeed, my noble friend has been supported by the noble and learned Lord, Lord Ackner, this evening.
I am delighted that I have heard nothing against my noble friend's amendments. They therefore appear to meet with your Lordships' approval and I for one will gladly support them.
§ On Question, amendment agreed to.
§ Lord Windlesham moved Amendment No. 36:
Page 22, line 35, at end insert—
("(1A) Without prejudice to the generality of subsection (1) above, the condition specified in paragraph (a) of that subsection
may be satisfied if it appears to the Attorney General that the judge erred in law as to his powers of sentencing.")
§ On Question, amendment agreed to.
§ The Earl of Caithness moved Amendment No. 37:
Page 23, line 19, at end insert—
("(8) In the application of this section to Northern Ireland—
§ On Question, amendment agreed to.
§ Schedule 3 [Questions as to sentencing—supplementary]:
The Earl of Caithness moved Amendment No. 38:
Page 110, line 12, leave out paragraph 3.
§ The noble Earl said: My Lords, this amendment responds to points made during the Committee stage by the noble Lords, Lord Wigoder and Lord Harris of Greenwich. Both expressed doubts about whether it was right to give a single judge any role in the procedure in Clause 33 under which the Attorney-General will have the power to refer unduly lenient sentences to the Court of Appeal.
§ As it stands the Bill allows the possibility that leave to bring such a reference might be granted by the single judge with the full court being involved only if the single judge was minded to refuse leave. Our purpose was to spare additional work for the full court which would obviously have to hear and determine the application itself at a later stage.
§ We have reflected on the matter in consultation with the noble and learned Lord the Lord Chief Justice. He shares the misgivings expressed by the noble Lords, Lord Wigoder and Lord Harris of Greenwich. On reflection, we also agree, and the effect of the amendment is to remove the power of the single judge to grant leave. I beg to move.
§ On Question, amendment agreed to.
§ The Earl of Caithness moved Amendment No. 39:
Page 111, line 22, at end insert—
("14. In the application of this Schedule to Northern Ireland—
§ On Question, amendment agreed to.
§ Moved accordingly, and, on Question, Motion agreed to.