HL Deb 22 October 1987 vol 489 cc252-94

4.5 p.m.

The Minister of State, Home Office (The Earl of Caithness)

My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved, That the House do now again resolve itself into Committee.—(The Earl of Caithness.)

On Question, Motion agreed to.

House in Committee accordingly.

[The LORD ABERDARE in the Chair.]

Clauses 25 and 26 agreed to.

schedule 2 [Documentary evidence—supplementary]:

The Earl of Caithness moved Amendment No. 30: Page 101, line 22, leave Out paragraph 4.

The noble Earl said: I should like to speak also to my Amendment No. 33 which is consequential and, with the leave of the Committee, to Amendment No. 32 which is related.

My two amendments are essentially technical, but they bear directly on the problem which Amendment No. 32, in the names of the noble Lord, Lord Hutchinson of Lullington, and the noble and learned Lord, Lord Elwyn-Jones, is intended to address. It may first be helpful if I explain how the government amendments have come about.

Schedule 2, contains a number of provisions ancillary to those in Part II which do not need to feature in the body of that part of the Bill. One of these is to the effect that, where a statement has been made abroad the court should have regard, in assessing the weight to be given to it, to whether it was possible for questions to be put to the person making it.

On reflection, it seemed to us that this was wrongly placed in Schedule 2 and bears so directly on the procedure created by Clause 27 for taking evidence abroad that it should be part of that clause. It also seemed right that the issue of whether there has been an opportunity for questions to be put to the witness is a sufficiently significant consideration to affect not only the weight to be given to the evidence but its very admissibility. Amendments Nos. 30 and 33 therefore transfer the provision from Schedule 2 to Clause 27 and require the court, in deciding under Clause 23 whether to admit the product of a letter of request, to have regard to whether there has been an opportunity for questioning.

How does this affect Amendment No. 32? That proposal approaches from a slightly different direction the important questions of legal representation for the accused and opportunities for cross-examination. The first point I might make is that the circumstances in which requests will be made are likely to vary greatly. Sometimes, as the amendment of the noble Lord, Lord Hutchinson of Lullington, implicitly recognises, proceedings will not have begun, and the questions of representation and cross-examination to which his amendment directs our attention will not arise. In other cases the evidence will be of such a routine nature and so factual in character that it is unlikely that any great purpose would be served by the accused being represented and having questions put on his behalf. But there will undoubtedly be cases where there is a good case to be made for the accused having his lawyer present when the evidence is taken, able to address questions by one means or another to the witness. In that respect, the noble Lord has, if I may say so, put his finger on an important point.

I should be reluctant, however, to accept his amendment as it stands. The reason is that we would not wish to make rules which purported to impose on foreign jurisdictions procedural requirements which, for understandable reasons, they might in some cases be unable to meet. Legal systems differ greatly and it may not always be possible to guarantee a particular style of procedure. We are also not entirely sure that this is a matter which can properly be dealt with in rules. The better approach, we think, is not to purport to impose procedures on the other countries concerned, but instead to require the courts in this country to have regard to whether legal representation was available for the accused when the evidence was taken and whether there was an opportunity for cross-examination.

That is where the Government amendments come into the picture. The product of letters of request will fall to be admitted as evidence under Clause 21 of the Bill. It will be a first hand statement in documentary form. But, as with all other documents capable of being admitted under Clause 21, the court in this country would have discretion to exclude it under Clause 23. What I should be willing to do, if the noble Lord thinks it would be helpful, would be to amend Clause 27 so that in deciding whether to exercise that discretion in relation to evidence taken under Clause 27, the court should, in addition to all the other considerations listed in Clause 23, have to take account of the question of legal representation and the presence or absence of opportunity for cross-examination.

This would involve some change in the terms of Amendment No. 33, since it deals only with cross-examination. But I would be willing to withdraw both government amendments and to consider between now and the Report stage whether we might re-express Amendment No. 33 so that it refers explicitly to legal representation and cross-examination. The court in this country would then be bound, in considering whether to admit or exclude the product of a letter of request, to have regard to whether the accused—assuming the accused had been identified—had had an opportunity for legal representation and for questions to be put to the witness on his behalf. I believe that would go a long way towards meeting the noble Lord's concern, and I very much hope that on the basis of that assurance he will be ready not to move his amendment. I beg to move.

Lord Hutchinson of Lullington

I am grateful to the Minister for what he has said. It was a little difficult to follow the whole of what was said as the proposals were delivered so quickly. As I understood it the main point that he made was that he did not wish to impose upon foreign countries a duty which they might not wish to take on board. Perhaps I may deal with Amendment No. 32 at this stage. That amendment merely suggests the insertion of words at the end of line 33 in Clause. 27(5)(c) which reads: may make such provision as appears to the authority making either of them to he necessary or expedient for the purposes of this section and in particular for the appointment of a person before whom evidence may he taken in pursuance of a letter of request. It is suggested that the following words are added: and where proceedings have already been instituted, for the legal representation of the accused and his right to cross-examine. All that is being suggested is that provision should be made—it is not imposing any duty on anybody—for that eventuality. The Minister's suggestion, as I see it, is to leave it only on the basis that the evidence may be excluded if the opportunity has not been given to the person who makes the statement.

Perhaps I might tell the Minister that the reason for the amendment—and if he is going to take it away and consider the exact wording I am sure that he will take this into account—was that the Roskill Committee dealt with the question of the difficulty of getting evidence from abroad before the court in this country, and indeed the noble and learned Lord, Lord Roskill, referred to that matter in the recent debate on another amendment.

What the committee said at paragraph 5.43 is this: We consider that the difficulties being experienced are such that legislation should now be sought to enable oral evidence to be taken on commission abroad for use in criminal cases in England and Wales. That is exactly what this clause seeks to do: We recommend that such legislation should provide that the judge be given power to order at the preparatory hearings the examination and cross-examination of any witness (whether for the prosecution or the defence) who is unable or unwilling to attend the trial in this country. In civil proceedings it is possible to obtain the evidence of a witness resident abroad by sending a commissioner abroad to examine the witness and present his testimony to the court in writing. We see no reason why a jury should not form its own view of the value of such evidence from reading a transcript of the witness' evidence (or a translation by a sworn interpreter) just as a judge does in a civil trial. The results of the examination and cross-examination might be clearer, of course, if the examination abroad were recorded on a video tape to be played back at the trial so that the court and the jury could see how the witness reacted to questioning. 4.15 p.m.

It was quite clearly in the mind of the Roskill Committee that whichever way it went, whether it was a transcript or a video, there should be examination and cross-examination to enable the jury to assess the evidence contained in the statement. Indeed the statement obtained from abroad will be completely valueless and will not have any credibility unless there is an opportunity to cross-examine and to test it.

Therefore, while very much appreciating what the Minister has said about his understanding of the necessity for cross-examination I should hope that when he takes it away and looks at it again he will bear in mind those observations in the Roskill Report and make provision, once proceedings have begun, for representation of the accused and provision for his right to cross-examine. Thus it will be made perfectly clear that any statement obtained abroad in this way will have real credibility if it is put in evidence in a trial in this country.

Lord Mishcon

I only want to add one word in support of the noble Lord, Lord Hutchinson. I think that he possibly wrongly interpreted what the Minister said. If he did so, I am sure that he will welcome my observation; if he did not, I apologise for wasting the time of the Committee.

I understood the noble Earl to say not that the court would, or would not, exclude the statement where indeed there had been no provision made for cross-examination and representation. I think what the Minister in fact said he was considering was that the court would have the opportunity of deciding whether or not the absence of that right should, or should not, exclude the statement from being admitted in evidence. Of course there is a world of difference between the two.

If it is merely to be left to the discretion of a court to try to work out whether or not cross-examination might have been effective to test the credibility of the witness whose statement had been taken abroad, it would be quite absurd in the interests of justice. There must be, as the amendment says, clear provision made where proceedings have been instituted. As the Roskill Committee definitely laid down, if proceedings are instituted there must be provision made for proper representation and the ability to cross-examine. If that provision has not been made the statement must be excluded, and it should not be a discretionary right of the court to exclude at its discretion if it finds that indeed that right had not been given.

Lord Campbell of Alloway

In practical terms surely the noble Lord is right. There is really no practical difference in the end between the proposals of my noble friend the Minister which rest upon the permissive, "may make such provision", and his undertaking to include in that the concept of legal representation and the question of the right to cross-examine, and the concept of the amendment of the noble Lord, Lord Hutchinson, which incorporates precisely the same concept. At the end of the road it is merely a matter of wording. In principle both amendments arrive at the same result.

The Earl of Caithness

I am grateful for the support of my noble friend. To recap, the presence or absence of representation or cross-examination would be added to the specific factors to be taken into account by the court, which is another important safeguard.

I wish to take up the noble Lord, Lord Hutchinson of Lullington, on one small point. He said that one of the reasons I was reluctant to agree to the amendment was that a foreign jurisdiction, to use his words, "might not want to take it on board". In fact I said, "would be unable to meet", which has a different sense and adds to the reasons that I went on to expound as to why my suggestion was the better one.

I do not think there is need to make the provision suggested by the noble Lord. If the foreign system allows the accused to be legally represented, well and good, but the accused does not need a Crown Court rule to be made in order to employ a lawyer in those foreign proceedings. We still believe that the provisions the noble Lord suggests are otiose. We believe what we offer would be sufficient to meet his point.

I should like to take away the three amendments and consider the matter, as I said at the beginning. I will read carefully what all noble Lords have said today.

Lord Mishcon

Before the noble Earl does that, and it is very gracious of him, I should like to make clear from my point of view—the noble Lord, Lord Hutchinson of Lullington, obviously will add to it if he sees fit—that all the Minister is offering—this is not what the noble Lord, Lord Campbell of Alloway, understood, or, if he did so understand, I did not understand his speech—is that the court may in its discretion take into account the absence or presence of this facility to cross-examine. If the court thought it was all right to admit it even though no such right had been given, it would be competent for the court to do it. This amendment states that provision ought to be made. That is the great difference between the two points of view.

I therefore cannot agree with the noble Lord, Lord Campbell of Alloway, when he says that it is a difference without a distinction or a distinction without a difference.

Lord Harris of Greenwich

The Minister has said that he will reflect on the matter between now and Report. Given the fact that important issues are involved, it would be helpful if he were to write to those who participated before Report to give good notice of the result of his reflections.

The Earl of Caithness

It will be one of the many letters that I shall write between now and Report.

Lord Hutchinson of Lullington

I am happy not to move the amendment. It is enjoyable to be led on any occasion; to be led by the noble Lord, Lord Mishcon, on this occasion is an added pleasure. As his junior here, I should not think of saying anything different!

To help the Minister, I wish to mention Clause 30(5) before we reach it as it appears relevant here. The clause deals with giving evidence through video links, which relates to what we are discussing. Subsection (5) says: The provision that by virtue of subsection (4) above may be included in rules to which that subsection applies including such provision as appears to the authority making the rules to be appropriate for securing that in such cases as may be specified in the rules, the video link allows all persons concerned in the case to see and hear the witness and the witness to see and communicate with them''. I ask the Minister to say in due course—I do not expect an answer now—whether those somewhat tortuous and indigestible words by implication provide for cross-examination. I cannot understand what the words mean. Do they envisage one-way visibility only on the video link, one-way communication and one-way questioning or, by implication, do they mean that there will be an opportunity for cross-examination? I mention this because it seems relevant to the amendment under discussion.

The Earl of Caithness

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 2 agreed to.

[Amendment No. 31 postponed until after Clause 61.]

Clause 27 [Issue of letters of request]:

[Amendment No. 32 not moved.]

The Earl of Caithness moved Amendment No. 33:

Page 17, line 33, at end insert— ("(6) In exercising the discretion conferred by section 23 above in relation to a statement contained in evidence taken in pursuance of a letter of request, the court shall have regard to whether it was possible to challenge the statement by questioning the person who made it.").

On Question, amendment agreed to.

Clause 27, as amended, agreed to.

Clauses 28 and 29 agreed to.

Clause 30 [Evidence through video links]:

Lord Silkin of Dulwich moved Amendment No. 34: Page 18, line 26, leave out ("video") and insert ("closed circuit television").

The noble and learned Lord said: This is the first of a series of amendments concerning the proposed provision for children to give evidence in court. I have the privilege of moving the amendment together with the noble and learned Lord, Lord Edmund-Davies, the noble Lord, Lord Meston, and the noble Baroness, Lady Faithfull, a catholic collection of supporters, which, I hasten to make clear, does not include the official Opposition, who at present at any rate are neutral on the subject.

The first of the amendments is a relatively innocuous one and is a matter of nomenclature. We support the Government's proposals for Clause 30 in general, subject to one or two amendments that we wish to move.

We think the use of the term "video link" is likely to cause some confusion. The word "video" these days is usually associated with other things. As we understand it, what is here proposed is that evidence should be given by means of closed circuit television. We think that there is likely to be less confusion if that term were substituted.

We are more concerned with what may seem a small point. In later, more substantial amendments, we seek to use the word "video" in "video link" in its proper sense. One would clearly wish to avoid any confusion between them.

Amendments Nos. 34 and 37 are to the same effect, Amendment No. 37 being subsequent upon Amendment No. 34. If the Committee accepts Amendment No. 34, Amendment No. 37 would follow from it. I beg to move.

Lord Campbell of Alloway

I hope that the Committee will accept the amendment, which is for clarification. The word "video" could give rise to difficulties of interpretation. It might be argued, for example, that it related only to a tape or some such thing. This is in line with introducing the other series of amendments which I shall support.

Lord Renton

I have one difficulty over this, which is no doubt due to my ignorance. It is perfectly clear that if the provisions of the clause are to become effective, whether it is to be by live video link or by closed circuit television, a record (in other words, a tape) has to be made. If that is so, it seems to me not to be very material as to whether it is done by closed circuit television, of which a record is made, or by video link. perhaps in my ignorance I could be enlightened.

Lord Hutchinson of Lullington

May I ask the noble and learned Lord this? Surely "closed circuit television" is not apt to describe evidence which is bounced from America through a satellite into a courtroom in this country. Surely that is a video link.

4.30 p.m.

Lord Hailsham of Saint Marylebone

I was about to raise a point similar to that of my noble friend. It is important in any trial on indictment that there should be available the equivalent of a transcript for the Court of Appeal; and closed circuit television could be arranged in such a way that such a transcript was not available. When my friend comes to answer, or at some other time, if he will consider it, will he make quite sure that, whatever words he uses, there will be a permanent record available for the Court of Appeal, if necessary?

Lord Denning

May I suggest that we have a definition clause to tell us what "video link" really means? We may know what closed circuit television is, but let us have a definition clause and let us have clearly defined what a "video link" is.

The Earl of Caithness

I am grateful to the noble Lord for drawing our attention to the terminology used in Clause 30. If I may say so, I was a little surprised to hear him say. if I understood him correctly, that he was not speaking for the official Opposition when he was speaking from the Dispatch Box. At that stage I thought he was speaking for the official Opposition, who I think, if I am right in my interpretation of the noble Lord, will remain silent at this stage.

Lord Mishcon

I find it awfully difficult to remain silent: I believe that is the common view of the Committee. I think that on a matter of this kind, where one has the dual duty of safeguarding an accused and at the same time helping a child, many of us want humbly to listen to the debate and then come to a conclusion. If an opposition or a government, in this place of all places, were to have firmly fixed views before hearing the debate, the whole procedures of the Committee on a matter of this kind would be abortive in my view. That is the position of the Opposition. I hope it is the same position on the Government Benches.

The Earl of Caithness

As I think has been clearly indicated, we on this side are prepared to listen. We do not always have fixed views but at least we have some views. I believe that the purpose of the clause is well understood, but it is less clear how we can best describe the means by which the live evidence is to be taken in a case to which it applies.

We owe the term "live video link" to the Roskill Committee, which recommended that such links should be deployed using satellites for the taking of overseas evidence in complex fraud cases; but we are by no means wedded to this terminology. I am persuaded by what the noble Lord has said that "closed circuit television" is a clearer and more widely understood form of words. I am therefore glad to say that we can accept these amendments. We might want to suggest some further adjustment to the language at a later stage. For example, I notice, as has already been mentioned, that in one amendment the phrase "live video link" would survive in subsection (5); but that need not prevent our making these amendments now.

With regard to the point made by my noble friend Lord Renton and my noble and learned friend Lord Hailsham, of course a record will be kept in the usual way of these court proceedings and will be available for the Court of Appeal if necessary. It does not have to be done by means of video.

Lord Simon of Glaisdale

If the noble Earl will allow me, what does he mean when he says "kept in the usual way" in relation to this peculiar manner of giving evidence?

The Earl of Caithness

I understand that in courts there are shorthand writers who will be able to take down the transcript of the conversation between the parties.

Lord Renton

If I may say so, I think that my noble friend has missed the point made by my noble and learned friend Lord Hailsham and indeed by me too. We have said that there must be a record and the question is: what sort of a record? Also what arrangements would be made for the proceedings being taken and for their being proved, because that may be desirable too? Merely to have a transcript taken as the result of a shorthand note would not be right in a matter of this kind. We need to have a tape which shows what was actually seen on the closed circuit television. Can my noble friend give us an assurance that that is what will happen? As the noble and learned Lord, Lord Simon of Glaisdale, has just pointed out, it is no use saying that it will be done in the usual way because there is not yet a usual way for doing this.

Baroness Faithfull

I wonder whether I may refer the Committee to the work that has been done in Bexley as between the social services department and the police with regard to this matter. There has been a television set in a room apart from the court and the child, with an interviewer, is in that room. In the courtroom there are television sets so that members of the court can see them. Also one is able to hear what the child says and what is said to the child. Therefore one hears exactly what is said, and I think a transcript is taken.

Lord Silkin of Dulwich

Let me say a word in support of what the noble Lord, Lord Renton, has said. I do not think it affects the specific point of the amendment. I am grateful to the Minister for having indicated the Government's acceptance of that, which I believe to be right. I agree that the Court of Appeal might very well wish not merely to read what is said in a transcipt but actually to see what the court saw. It is something which it does not have the advantage of in the ordinary way, but this is different from the ordinary way. It seems to me that the Government ought to give very careful consideration as to whether there should not be made available to the Court of Appeal, if there should be an appeal, what would truly be a video in that context; that is, a record of what was seen and heard through the closed circuit, if this procedure is adopted.

Lord Campbell of Alloway

This should be twofold: the tape and the transcript, so far as anything is said. So long as you have those two safeguards, then this is clearly entirely proper.

The Earl of Caithness

This raises a point that I should like to look at. But let us just take the case—not the fraud case that the noble and learned Lord, Lord Roskill, was looking at in connection with his report but, let us say, a case concerning the sexual abuse of a child. Instead of the child being physically in the court, he or she will be in an adjoining room. We shall come to the details of that in later amendments. But all this link will be doing is to transmit what the child is saying to the court in a live manner. I do not at the moment see why it is necessary for that to be taped as well as taken down in written evidence, because if you took away the wall behind which the child is sitting, the child would be in the court and there would not be a video link now.

I think that is something at which I should like to look and discuss in much more detail with my noble friend Lord Renton as well as with the noble Lord, Lord Hutchinson of Lullington, who is particularly keen that we should not necessarily allow evidence in this manner to come forward. I shall be interested to hear his views in due course, but perhaps we can discuss it at a later stage.

Lord Hailsham of Saint Marylebone

I do not want to bother my noble friend unduly but what I had in mind was just as much someone who is slightly familiar with television as someone who thinks he is familiar with court procedure. Presumably the video link will not show the whole of the room in which the child will be giving evidence. It will show a picture of the child and perhaps the person who is putting questions to the child, unless that person himself is in the courtroom.

A permanent record is wanted, so that should anything be alleged against the propriety of what took place in two separate rooms physically, it could be looked at and adjudicated upon by the Court of Appeal. It is in the nature of things that if there is an examination taking place in one room and a trial proceeding in another, the first of the two episodes may not be completely shown by the video. Therefore one must have a permanent record of what is done.

The Earl of Caithness

I am grateful to my noble and learned friend for those additional comments. I shall draw them to the attention of my noble and learned friend the Lord Chancellor. As my noble and learned friend who made the point knows better than I do, it is for the Lord Chancellor to make the rules for the court and it is only right that I should draw this matter to his attention.

Lord Mottistone

I hope what when my noble friend takes this amendment away he will bear in mind the suggestion made by the noble and learned Lord, Lord Denning, that there should be a definition clause in this section to indicate precisely what is meant by "video link". It means different things to different people, as does "closed circuit television" under certain circumstances. The amendment could well incorporate a method for use in this role in the way suggested by my noble and learned friend Lord Hailsham.

On Question, amendment agreed to.

The Earl of Caithness moved Amendment No. 35: Page 18, line 27 after ("Appeal") insert ("or the hearing of a reference under section 17 of the Criminal Appeal Act 1968").

The noble Earl said: As it stands, in certain circumstances Clause 30 permits evidence to be given by what we now call closed circuit television in trials on indictment and in appeals to the Court of Appeal. We see great advantage in enabling use also to be made of this facility in those few cases which my right honourable friend the Home Secretary refers to the Court of Appeal, using his powers under Section 17 of the Criminal Appeal Act 1968. These cases usually come to light some time after conviction and after further investigation. By that time, witnesses may be abroad and unable or unwilling to return to the UK to give evidence in person. Use of closed circuit television in those circumstances would clearly be in the interests of justice. Similarly, should such cases involve offences of the kind specified in the clause and involve child witnesses, then it seems right that they should be spared the ordeal of giving evidence in person, whether it be a reference, an appeal or the trial proper.

This amendment will enable evidence to be taken by closed circuit television in appropriate referred cases. I beg to move.

On Question, amendment agreed to.

4.45 p.m.

Lord Silkin of Dulwich moved Amendment No. 36:

Page 18, line 44, at end insert— ("(2A) The court may in any case direct that a witness under the age of 14 be questioned by a person acceptable to the parties and the court and such questions and the answers thereto shall form part of the evidence in the proceedings.")

The noble and learned Lord said: Amendment No. 36 is the first of the more substantial amendments in this group. One of the fears that has often been expressed about the closed circuit television link system is that it does not overcome the difficulty of a child, particularly a young child, being examined and cross-examined by counsel, or indeed by a defendant in person, who may be a very interested party in relation to the child's evidence, and the effect that it might have, and does have on occasions, as we know, on the way the child gives evidence or on his willingness or ability to do so.

A number of people concerned in this field have suggested that there should be a provision which would enable the child to be examined by some third person who is not connected with the prosecution or the defence and possibly that person would be fed with questions that are important to the prosecution and the defence. We have considered that possibility but do not feel that by itself that procedure would be satisfactory or fair, and the proposal made by this amendment does not go anything like so far. It proposes that if the parties and the court agree that a witness should be asked questions by some third person and that third person is acceptable to all of them, the procedure should allow it.

One hopes that there will be many cases in which both the prosecution and the defence accept that it is the sensible thing to do and agree therefore in principle. They should also be able to agree on the right sort of person to carry out that task. One hopes then that in at least the majority of cases the court will also agree. In other words, this is not an impediment upon the procedure but an additional power, which, given the procedure of this clause, will be available to the court and the parties if that procedure is thought helpful in obtaining evidence from a young person.

Indeed, in some recent cases we have seen that with the best will in the world and even with the most careful attempts within the procedure of segregating a child witness—yet still allowing, as must be allowed within the present procedure, questions to be asked by counsel who appear without their gowns and wigs, in the presence of a judge who sits without his judicial paraphernalia and with the help of people who are experienced in dealing with young children—there have still sometimes been very great difficulties. We know that as a result of those difficulties on occasions a child has simply been unable to give evidence and nobody wants to force the child to do so.

This amendment gives a power which could be used if circumstances of that kind arose and if the parties were prepared to agree to the procedure and on the person who would put the questions. No doubt one of the conditions of that agreement would be that that person would put whatever questions were desired by both the prosecution and representatives of the defendant. Presumably it would be only on those terms that the court would agree. As a useful additional procedure I hope that the Government will feel that this amendment is worth accepting. I beg to move.

Lord Campbell of Alloway

May I seek a measure of clarification from the noble and learned Lord? I find the drafting, although I accept the spirit of it, extremely difficult. I may be wrong and I seek his correction if I am. One can take it quite shortly. This amendment applies "in any case". "In any case" goes beyond the circumstances of Clause 30(2). But then if you look at Clause 3(2), the drafting seems, with respect, to be curious. It says, "This subsection applies". Surely that means that subsection (1) above applies, because otherwise the clause makes no sense. If I am right in that assumption then clearly the words "This subsection applies" require amendment to say "Subsection (1) above applies".

If it is right so far on analysis, as an adjunct to the armoury for the protection of children from molestation, this proposal, although well-intentioned, has very severe limitations. I ask with respect: is the child complainant "one of the parties" in the amendment, or is it the Crown that is one of the parties? Can the Crown give consent, if the child complainant will not consent, to the questioning of a witness under 14? Would the accused be likely to consent, in any event? What is this procedure of a list of agreed questions? How is one to achieve agreement on the list of questions? Has the examiner extra powers to ask questions on his own initiative?

These questions and the form of drafting, although I accept the good intentions of the spirit, cause me to wonder, in the absence of clarification, whether I could personally vote for the amendment in its present form.

At all events, after the words "The court may in any case" in this amendment, you would surely have to insert the qualification to which subsections (1) and (2) apply, to narrow it from "any case" to the purpose and object of the child molestation protection concept. With the qualification acceptable to the parties, the Committee may feel that the amendment would serve little practical purpose. I respectfully suggest that it is too wide, of limited value, and in its present form, subject to clarification, perhaps unacceptable.

Lord Denning

I hope the Committee will think a little more about this amendment by trying to envisage what is going to happen with the closed circuit television. Who is to be present in the other, next-door room besides the child? Is the judge to be there? Are the two counsel to be there in that other room, or are they not? Are the judge and the counsel to remain in the room where the jury are? It is very important to decide what the practical position should be when a child is in the next-door room being questioned or cross-examined. I should like to ask: what is the function of the judge?

I think that often I was able myself with a child witness to put the child at ease. I tried and I think I succeeded, and the child had confidence in me. Not all judges could do it, but perhaps I could. I could put a child at ease and, I hope, get the truth as best I could from that child. Is such a thing to happen with this video link or closed circuit television? Is the judge to have any part in it at all? He will not be in the next-door room. He will not be able to turn, as I would, to the child and say: "Did you really mean that?", or "Was it this, that or the other?"

In other words, a great deal more thought needs to be given to the practical working out of this closed circuit television in a next-door room when the judge and the counsel and the jury are in the adjoining room. It needs a great deal of working out and this amendment put down today means that the Government ought to consider what is the practical way of introducing closed circuit television into our criminal trials.

Lord Hutchinson of Lullington

With great respect to the noble and learned Lord, I think really he was addressing his words to the next amendment.

All I wish to contribute on this amendment is that it seems to me an extremely useful provision, one which might encourage the parties to do what is suggested in the amendment. I would only ask again for information, as the noble Lord, Lord Campbell of Alloway, did. I agree with him entirely on the drafting of Clause 30. Surely Clause 30(2) should read: "Subsection (1)(b) applies".

However, having said that, as a lawyer I ask for this information. Is it visualised that if both parties agree that this person should conduct the questioning, this should be done before trial and a statement should be taken from the child on that basis which then would be used at the trial, with the possibility of either party questioning the child on the basis of that; or is it visualised that this statement should be the statement—finish—in the whole of the proceedings? In my view, the first one might be the more useful.

Lord Renton

The difficulty I feel about the amendment is this. We are told in subsection (1) that this is a case of giving evidence on a trial on indictment or an appeal to the criminal division of the Court of Appeal. We now, through a government amendment, find that it would also apply to those cases which are referred to the Court of Appeal. But a trial on indictment is always preceded by a preliminary hearing before the magistrates. It seems to me that that is the stage at which it would be right to be taking this evidence.

If that is so, then I think that this clause needs to be redrafted to make it clear that that is envisaged. Then, of course, if that were done, the amendment of the noble and learned Lord, Lord Silkin, would have to be reconsidered in any event. Perhaps I may make one very small point in relation to the drafting of it. Maybe my recollection is wrong, but I have always thought that you speak of the parties to a civil case but that in the case of a criminal case you do not refer to the prosecution and defence as the parties.

Lord Mishcon

I think we are all trying very hard to carry out the duties to which I tried humbly to refer before. It is difficult. I am trying to envisage the practicalities of this amendment, and I mention a point which I believe has not been mentioned so far. One can imagine that in a few cases the parties, whoever they may be, may indeed agree to a person in whom both parties, if it is just the two—the prosecution and the defence—have confidence asking and obtaining answers to certain questions. I cannot envisage anyone on behalf of the defence doing this without the questions being agreed beforehand.

I am trying to envisage what happens in regard to supplementary questions. There are very few questions that can be addressed, especially to a child, where you obtain the answer yes or no. And in the type of cases that we are unfortunately envisaging, there are very few questions that could be answered completely yes or no. If this procedure is gone through, what happens when there is a question asked to which an incomplete answer is given? Has an application immediately to be made back to the judge and to the parties, as to whether such a question which is a supplementary question, can now be put? This is the sort of amendment that has good-heartedness behind it but where agreement between "the parties" is scarcely likely in practical cases to be achieved. Even if it were achieved, it seems to me to lead to a very partial successful result.

5 p.m.

Baroness Faithfull

May I say that I believe a number of these questions will be answered and understood when we have debated Amendment No. 38?

Lord Milverton

In principle it seems only right and proper that somehow this amendment should be made right even if noble Lords suggest that it has some flaws. I hope it will be possible to make the amendment workable. It is only fair and right for the children.

Lord Campbell of Alloway

I raise a point of clarification. Amendment No. 38 stands on its own feet. I support that hook, line and sinker. I would oppose this one, having listened to the debate, hook, line and sinker. It is a different issue.

Lord Edmund-Davies

I refer to the point of the noble Lord, Lord Renton, about the questions envisaged in Clause 30 being questions which have been put at the committal proceedings stage. The noble Lord will doubtless remember that Clause 31 provides that in proceedings before the examining justices,

  1. "(a) a child shall not be called as a witness for the prosecution; but
  2. (b) any statement made by or taken from a child shall be admissible in evidence of any matter of which his oral testimony would be admissible."
That is a clause already in the Bill.

Lord Renton

In that case, my comment would be that Clause 31 would do much better coming before Clause 30.

Lord Hailsham of Saint Marylebone

I hope that whatever else we do in the course of this very interesting discussion we shall not diminish either the burden or the standard of proof against an accused. It would be only too easy to allow our detestation of offences against children, or our sympathy with the child who has to give evidence, to override our other feelings. The law of England must remain that a man or woman is not to be found guilty of a crime unless it is proved beyond reasonable doubt that guilt is established.

Baroness Macleod of Borve

I agree wholeheartedly with the noble Lord, Lord Renton. Although the Court of Appeal is mentioned, in actual fact the first trial always takes place in the magistrates' court. Therefore, with respect, it seems to me that everything we are discussing will be pertinent to the magistrates' court before the Court of Appeal or indeed any other court.

The Earl of Caithness

This amendment would give the courts a discretionary power to direct that a child witness in, say, a sex abuse case should be questioned by a third party independent of prosecution, defence or judge—the so-called child examiner. Before I deal with this amendment, I should like to explain that, while I recognise that boys, are alas, also subject to abuse, as a matter of convenience I shall be referring to the victims as "her" throughout the following debates.

To clear up one point straightaway, the noble and learned Lord, Lord Silkin, said that the examiner in his amendment would have to be acceptable to all parties. I fully understand the concern that has prompted the noble and learned Lord to table the amendment. We all acknowledge that giving evidence at the Crown Court in such cases can be a distressing experience for a young child. We all wish to minimise this distress as far as possible. I can assure the Committee that the Government need no urging from others to take action on this. I will not now take the opportunity to list the numerous initiatives we have already taken, or have planned, to deal with the evil of child sex abuse. The clause we are debating is itself a major step which will reduce the trauma to child witnesses in criminal cases.

But we must ensure that reforms are justified and we must ensure that the right of an accused person to a fair trial is not infringed, as my noble and learned friend Lord Hailsham has said. I agree entirely that there must be justice for children, but, equally, there must be justice for an accused. I have doubts about whether the introduction of child examiners would, in fact, greatly reduce stress to children witnesses; and I am convinced that it would be so unjust to an accused that we should oppose it.

This amendment presupposes that there is some way in which a child's evidence can be elicited by sympathetic questioning without upsetting her. The plain fact is that if a man pleads not guilty to a charge of sexually molesting a young girl he is, in effect, saying that she is lying. I cannot see how he can hope to be acquitted unless at some stage she is asked on his behalf whether she is lying. Of course this will distress her, and I have the utmost sympathy with the victim and her parents. But I see no way round this dilemma. In these circumstances cross-examination is bound to be upsetting no matter who undertakes it. From her point of view I doubt that much is gained by using a social worker or some other person as the mouthpiece of defence counsel.

On the other hand, interposing a child examiner between the defence and the principal prosecution witness would undoubtedly dilute the interaction between counsel and child which is a key part of protecting the right of the accused person who, we must remember, is innocent until proven guilty. A man accused of this sort of crime is at risk—quite rightly—of a long-term of imprisonment. He is entitled to a fair trial. We are convinced that this must mean that he is entitled to question the evidence against him through counsel of his choice.

The noble and learned Lord, Lord Silkin, obviously agrees with this view because his amendment would not permit any child examiner to question the witness. The proposal is for a discretionary power; and the examiner must be a person acceptable to the defence. But while this appears to preserve the accused's right to choose a person to question witnesses, in practice it would remove it. If a judge directed that questioning was to be via a third party, is it really feasible that the defence would refuse to agree to this and insist on their rights? In any event, jurors would be well aware of the power that was on the statute book.

I do not believe that any defence counsel worth his salt would agree that his client's case should be conducted by, say, a social worker or some other well-meaning person. I find it inconceivable that he would permit the crucial witness to be questioned by anyone other than himself. That is why I was so surprised to hear the noble Lord, Lord Hutchinson of Lullington, say what he did. I thought he was a great believer in this particular aspect of the court's procedure which would be undermined by this amendment. Either the amendment—

Lord Hutchinson of Lullington

May I interrupt the Minister as he has mentioned me? As I understand the amendment, it is not at all to do with what the Minister is saying. I may have got it completely wrong and he may have got it completely right. As I understand the amendment, both parties would agree that the first statement to be used in the proceedings would be a statement taken by a person agreed by both parties rather than some police officer, social worker or whoever. The impartial person agreed to by both parties should take the original statement from the child. That seemed to me a sensible proposition and that is why I supported it. It never occurred to me that it would take the place of cross-examination.

The Earl of Caithness

As I understood it, the suggestion was not that it would take the place of the first statement but rather that throughout the case a third party could be used, thus taking over the role of counsel's cross-examination.

Lord Mishcon

May I at once dissociate myself from my junior counsel?

The Earl of Caithness

The noble, Lord Mishcon, and I have often agreed in the past. We agree at this moment and I am sure that we both look forward to agreeing many times in the future. Either the amendment is a dead letter or, as I have explained, it would abolish the right of the defence to cross-examination by the back door.

For the reasons I have given, I fear that cross-examination of a child almost inevitably must be upsetting to her. But this does not mean that it must be brutal. I am not aware of any evidence that counsel for the defence terrorise children during cross-examination. Indeed, they would be singularly ill-advised to do so. The code of conduct of the bar forbids barristers to put questions which are intended only to insult or annoy a witness or which are otherwise an abuse of his function. Counsel will be well aware, in any event, that such a line of questioning with a child would be counterproductive. It would not impress the jury in his client's favour.

The judge is in overall control of proceedings and no doubt he would intervene to prevent any bullying of a child. Nevertheless, when every precaution is taken, questions may have to be put to children during cross-examination which may upset or distress them. There is nothing to show that defence counsel, when performing this duty, go further than is necessary. I doubt that interposing a third party as proposed by this amendment would greatly reduce distress to the child or, if the questions which it is necessary for the defence to put are still put, that it would result in more sympathetic questioning. But it would seriously infringe the right of an accused and prejudice the fairness of the trial. For those reasons, I hope that the noble Lord will not press his amendment.

Before I sit down, perhaps I can take the opportunity to respond to some of the points raised during the debate. The noble and learned Lord, Lord Denning, asked about the implementation of closed-circuit television. If Parliament agrees our proposals, we hope to bring that into force as soon as possible. But inevitably there will be a delay. Courts will have to be equipped and rules governing procedures will have to be made. As the noble and learned Lord is aware, that will take time. In any event, we cannot begin equipping courts until Parliament has authorised that expenditure and the Bill has received Royal Assent.

What we can do now is to prepare the ground. We have already sought views on how the scheme should work and those are still being received. We have commissioned a report from consultants which will cover such matters as which Crown Court centres need to be equipped, the type of equipment necessary and the building work that will be required. It will also cover some of the points that the noble and learned Lord raised. I can assure the Committee that preparations are in hand. However, at this stage, I cannot give a firm date for implementation.

My noble friend Lord Renton asked about extending closed-circuit television to magistrates' courts. I take my noble friend's point, which was supported by my noble friend Lady Macleod of Borve, concerning committal proceedings in magistrates' courts. The anecdotal evidence we have is that children do not find summary trials nearly as traumatic as proceedings on indictment. Proceedings at summary trials are more informal and the alleged offences are less serious than those in cases dealt with by the Crown Court. Also, equipping magistrates' courts would be extremely expensive and we do not think that the cost is justified—

Lord Renton

Will the noble Earl permit me? I was not referring to cases of summary jurisdiction. I was referring to the fact that committal proceedings take place in magistrates' courts. It seems to me that if we are going to have such cases tried on indictment it would be right for them to be part of the committal proceedings.

The Earl of Caithness

I take my noble friend's point about committal proceedings. I was just going to cover that particular point. Most committals are on the papers rather than on an oral hearing. Even when there is a full committal, Section 103 of the Magistrates' Courts Act 1980 provides that only in exceptional cases should children be called to give evidence. Usually their statements will be used. Clause 31 of the Bill extends the provisions to cover exactly those offences covered by closed-circuit television in Clause 30. But the defence can insist on the child giving oral evidence. Therefore, I should like to consider the point further. I refer my noble friend again to the fact that we have asked consultants to advise us on closed-circuit television in the Crown Courts and they will also look at the question of committal proceedings.

My noble friend also raised a question as to whether in criminal law the word "parties" was correct. I regret to have to tell him that he is wrong about not referring to the prosecution and defence as parties. I refer him to Section 10 of the Criminal Justice Act 1967, which refers to that word.

Lord Renton

I bow to better recollection.

The Earl of Caithness

My noble friend Lord Campbell of Alloway made a point concerning drafting. The words, "this section applies" are not a drafting error. The words refer to Clause 30(1)(b) where they first appear.

Lord Campbell of Alloway

I hear what my noble friend says but I had some support from other experienced and distinguished lawyers in this House. I beg leave to suggest that he should take further advice and that the matter should be put right without necessitating a formal amendment.

Lord Hutchinson of Lullington

I support the noble Lord hook, line and sinker.

The Earl of Caithness

On a legal point such as this I am sure that my noble friend and the noble Lord, Lord Hutchinson of Lullington, will not be surprised if I bow out at this stage and say that I shall go for legal advice.

Turning to the amendment, may I recapitulate by saying that we are concerned about it. We do not believe that, weighing it in the balance, it would be of such benefit as the noble Lord who moves the amendment suggests.

5.15 p.m.

Lord Silkin of Dulwich

May I make clear, as there has been some uncertainty raised in the debate, that this procedure is intended to be ancillary to what has now been described as the closed-circuit television system. Other procedures which would be adopted in addition if some other system were adopted—and I shall be moving an amendment in due course about that—are quite different. What is proposed here is that as part of the closed-circuit television system it should be possible for what I hope I have correctly described as the parties and the judge to produce the result that questions would be put by some third party rather than by counsel or defendants themselves.

Although the discussion has centred on what is fair to the defendant, the provisions proposed are not solely and necessarily for the benefit of the defendant. Other child witnesses might be called who would have equal difficulty with the complainant against the defendant. The problems in court procedure are just as likely to cause difficulty to them in giving their evidence as to those who are the complainants. Any additional help that can be given to the courts in dealing with those difficult cases may be to the benefit of the defendant or the prosecution. I accept that it is much more likely that it would be the prosecution who would take advantage of it.

In passing, perhaps I may say a word about the point raised by the noble Lord, Lord Campbell of Alloway. I do not think myself that a provision of this kind would be wholly out of place in relation to Clause 31(a). There will be cases, it seems to me, where one would not want to send counsel on both sides and all the other paraphernalia to ask questions of a witness who is outside the United Kingdom. The case may be one where it is not necessary to go that far. This procedure could be of value in that instance as well.

Similarly, one can reduce the advantage, so far as children are concerned, to cases where it is thought that the child would not be likely to give evidence of a kind which must be the subject of very severe cross-examination. It may be somewhat at the fringe of the case, for example. I should have thought in those circumstances that it could be of some value. Therefore I find it surprising that the Minister should speak about an additional power certainly not often used; and I made that clear, I hope, at the outset. It is nonetheless available for the court. He spoke of that as though it were derogating from the rights of the defendant.

If a defendant insisted upon his right to cross-examination he could do so just as he can now. He is often placed in difficulty as to whether to cross-examine a child witness who has given evidence against him. He or his counsel know that he may create a very bad impression by doing so under the present system and he has to decide whether it is essential. With this amendment incorporated he would still have to decide whether it is necessary for him to cross-examine. He would have simply an additional way of avoiding the difficulty which the procedure proposed in Clause 30 involves.

It would be wrong at this stage to put this matter to a vote. We have placed the point before the Committee and we will clearly have to think about what has been said. The noble and learned Lord, Lord Denning, pointed to a number of difficulties in relation to this procedure concerning Clause 30. I accept that the amendment, although seeking on balance to remove difficulty rather than add to it, can cause difficulties in itself.

I agree that the whole procedure needs to be very carefully thought out again before it is given effect to by those in charge of the prosecution or the defence. The greater the difficulties which exist the more one feels, as did my colleagues and I in relation to these amendments, that if one is putting on the statute book a procedure which is going to give rise to very great difficulties one should be thinking about possible alternatives. When we come to the remaining amendments which I hope to move, it is those alternatives that we shall be dealing with.

In the face of the fairly balanced expression of views this evening I feel it right not to pursue this matter now but maybe to come back to it with any amendment which may be drafted at a later stage of the Bill.

Baroness Phillips

Before my noble friend withdraws the amendment I should like to stress the importance, which he has just underlined, of the other child witnesses. We are not here dealing with ordinary children. Once again in this Chamber, and too often, we are so concerned about the rights of the accused. These witnesses are going to be very intimidated, even by the noble and learned Lords who sit here. They intimidate me, and if I were a nine years-old abused child they would certainly intimidate me.

There is no question of cruelty or bullying, but there is the question of submitting children to this kind of appalling trauma. There is no doubt that we are not getting cases before the courts for this very reason. Nobody wants to subject children to this procedure. We must find a way in which we can protect child witnesses. They are every bit as important as the man who is on trial.

Lord Silkin of Dulwich

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Silkin of Dulwichmoved Amendment No. 37: Page 19, line 2, leave out ("live video").

The noble and learned Lord said: This amendment follows from a previous amendment which has been accepted. I beg to move.

Lord Hailsham of Saint Marylebone

I thought that this amendment was going to be taken back, and therefore the best course is either to withdraw it or not to move it at all.

The Earl of Caithness

As I understand it, Amendment No. 37 is consequential upon Amendment No. 34, and Amendment No. 34 has been accepted.

Lord Hailsham of Saint Marylebone

I see. I am sorry.

On Question, amendment agreed to.

Clause 30, as amended, agreed to.

5.30 p.m.

Lord Silkin of Dulwichmoved Amendment No. 38: 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—

  1. (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
  2. (b) the question whether the probative value of the video record may be outweighed by any prejudice arising there from.

(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.

(5) Crown Court Rules and rules made in accordance with provisions of the Magistrates' Courts Act 1980 may be made for the purposes of this section.").

The noble and learned Lord said: We come now to what I shall not call the first substantial amendment, but certainly it is the most substantial of this series of amendments. Recent events have brought very clearly to the public eye the extent to which our law falls far short of a proper balance in the scales of justice where children are involved in giving evidence in the courts. These words were used the other day by the Home Secretary in another context. I consider them to be the most important words in this context which could be used.

In this field the balance is particularly delicate. It requires the maintenance of the traditional protection of those accused of crime. It also requires that our procedure should not create needless impediments to the child's effort to tell the truth or cause the child avoidable trauma resulting from the telling of it. It is today well recognised that our law and procedures fall far short of what is required to achieve the balance. The ordeal of giving sensitive evidence in open court in the presence of the parents to whose actions the evidence is directed is often too great for the child to accept. It is very likely indeed to cause lasting disturbance to the child.

Only this week our courts witnessed the obvious pain of child witnesses despite the most sensitive and praiseworthy efforts of the judge, counsel and all others concerned to try, within the present rules, to mitigate it. The Government have plainly recognised these deficiencies and by Clause 30 they have attempted to improve matters. But in our view Clause 30 is insufficient. As the NSPCC says in its briefing document, a wide package of reform is needed. Clause 30 is indeed welcome but it has weaknesses which can easily defeat its praiseworthy intentions. Some have been already referred to in earlier debates particularly by the noble and learned Lord, Lord Denning.

There is the question of time. The child will be asked to give evidence perhaps months after the event when his memory is not as fresh and cross-examination could be a greater trial to him. The formality of the court procedures cannot be wholly displaced. If we do not put into the clause something on the lines of the amendment that I have just withdrawn, that will be even more the case. In particular, the process of cross-examination, perhaps by the defendant in person, could operate as a substantial deterrent to a witness whom humanity and common sense exclude from the category of compellable.

Clause 30 is confined to a limited range of offences and outside them existing procedures will continue to apply. The existing restrictions on a child's evidence being receivable are then maintained—that is the subject of a later amendment—but they are restrictions which are, in my submission, out of accord with current ideas and knowledge. They are an unjustified impediment to the disclosure of the truth; an impediment which may prevent the conviction of the guilty or, indeed, the acquittal of the innocent.

It is not suggested that Clause 30 has no value. It may well solve the problem in some cases but for the reasons given it is certainly not ideal. It is at least very likely that it will let some cases through the net altogether and that in many cases valuable evidence taken shortly after the event will remain unavailable to the court, as it is now.

The proposed new clause in Amendment No. 38 is part of a comprehensive body of legislation which will deal with the problem as effectively as can be seen at present. It goes to the heart of the problem by making provision for the admissibility of prerecorded evidence in the form of a video interview with a child who is under 14 years of age.

Of course, to do that involves the provision of adequate safeguards for the defendants and that is fully recognised. Therefore, the new clause provides strong safeguards for him. The Home Secretary is to issue codes of practice for the conduct and recording of video interviews. As experience grows that provision will undoubtedly grow in value. In particular, it is likely to define the qualification of a person who conducts an interview and the safeguards for the potential defendants when interviews are conducted.

The interview will then be admissible as evidence only with the judge's leave. The judge will certainly have regard, in particular, to the manner in which questions have been put and answered and the balance between probative value and possible prejudice. Of course, he will have regard in that context to the question of whether it would be unfair to one side or the other, probably the defendants, to allow such evidence and as a result of that to allow evidence before the court which at that stage, at any rate, has not been subject to cross-examination. The courts will, without doubt, be as astute as they always have been to protect the interest of defendants.

The new clause provides that the tender of evidence in the form of a video recorded interview will not prevent the interviewed child from giving evidence in person. There will clearly be cases where he is able to do so, whether through the mechanism of Clause 30 or in the ordinary way. If so, the record of the interview will be a valuable check on his oral evidence. In other cases he will be unable to do so. In those cases the interview record will stand with the other available evidence and be considered for its worth by the jury, bearing in mind that it is not evidence given directly before the court, it is not subject to cross-examination and will not be the only evidence of that character which is accepted by the courts.

Finally, if the new clause in Amendment No. 39 is passed the judge will have an over-riding power to withdraw the case from the jury if he considers that a conviction would be unsafe or unsatisfactory. If he does not go as far as that. he will be able to give the jury all appropriate warnings about the value of such evidence before leaving the case to them.

I hope it is clear that these new clauses have been most carefully framed to ensure that the interests of the defendant, as well as those of the child, are fully protected. The interests of society will be safeguarded by enabling those in our society who need and are increasingly given special protection—our children—to speak freely and without the fears engendered by even the most benign court procedures, thus providing them with the best protection which the law can give against abuse of any kind.

The NSPCC and other bodies with great experience in this field have called for a full-scale reform in this area of law. This new clause and the other amendments proposed by noble Lords and myself will provide that comprehensive reform. We believe that the evils today are too serious for piecemeal and partial action. The time has come for the wholehearted reform which this new clause and the others embody. I therefore commend the new clause to the Committee. I beg to move.

Baroness Faithfull

I rise to support the noble and learned Lord. I speak not as a lawyer and not as one taking part in the law. I speak as a social worker who has been a Home Office inspector, a children's officer and a director of social services and as one who has dealt with children who have suffered cruelty and/or sexual abuse.

This amendment has the support of my colleagues throughout the country. The noble and learned Lord, Lord Silkin, has referred to the NSPCC and that society has done a great deal of work in this area. Mr. Alan Gilmour has written to me saying: The Bill already contains proposals for children to give evidence in court via live video links… The NSPCC urges, however, that these measures should be linked to a wider package of reforms including the admissibility as evidence of video recordings of interviews with children". I have also received a letter from the Police Federation of England and Wales referring to a trial where a child broke down and was unable to give evidence. This trial highlights the main point that the Police Federation has been endeavouring to make for more than two years…It appears to the Police Federation that the only possible way to ensure that the molesters of very small children are brought to trial, is to amend the law to permit video recordings of interviews between such children and a suitably qualified adult, to be admissible in evidence". The amendment has the support of the National Children's Bureau, the Association of Directors of Social Services and the National Council of Voluntary Child Care Organisations which includes organisations such as Dr. Barnardo's, the Church of England Children's Society and the National Children's Homes. I have had letters from magistrates. I have also had a deeply distressing letter from parents who alleged that their children had been sexually abused by a couple. The case was dismissed in the High Court. There was no evidence available because the nine-year-old child broke down. She was unable to speak because of her distressed and distraught condition.

I have consulted three medical centres—Oxford, Leeds and London. I also note that Mr. George Carman, QC, speaking on BBC "Newsnight" was in favour of the amendment subject of course to safeguards. Mr. Connell, QC spoke on the BBC "Nine o'clock News". He was in favour of video recorded interviews with an abused child.

As the noble and learned Lord, Lord Silkin, has said, at present the law, as it applies to child witnesses in criminal proceedings, seems to be biased in favour of the molesters. First, the law requires the child or adult to tell her embarrassing story in open court in the presence of the person who is said to have attacked her. As a social worker dealing with such children, I know that there is nothing more distressing to a child than to give evidence against her father or a cohabitee in front of a full court. Although a child may have been abused by her father, she nevertheless has a sense of loyalty to him. It is most extraordinary, but the child experiences the most terrible sense of guilt from having to speak against the father in court in an atmosphere the child is not used to. That is enough to strike many children down with terror, as evidenced by the harrowing scenes that have taken place in the Old Bailey during the past few weeks.

Secondly, if the child can be persuaded to utter, she must either understand the nature of an oath, or if she is to be permitted to give unsworn evidence she must understand the duty of speaking the truth. Many young children are capable of giving a good account of what has happened to them before they can understand an abstract concept such as "duty" or "truth". But if that is the case no court will listen to what they have to say.

Thirdly, a criminal court cannot act on the word of a young child who gives unsworn evidence unless there is corroboration. That means corroboration by something other than the unsworn evidence of another young child. Thus, a child molester can indecently assault a whole crowd of young children, and provided he neither confesses nor leaves medical evidence, he cannot be convicted however credible the children's story.

Fourthly, the hearsay rule means no parent, policeman, doctor or social worker is allowed to tell the court what the child said about the incident at the time it came to light. If the child gives evidence at the trial, nothing she has said earlier is treated as having an independent value, and if she does not give evidence at the trial, the court cannot listen to her earlier statements. Those of us who have dealt with such children are in many cases almost thankful that the case has been withdrawn; but that has meant that the molester has gone free.

I shall turn in simple terms, and from a practical point of view, to what we hope will happen. Immediately after the event has taken place or has been reported—it has often taken place a long time previously—we hope that there would be a video recorded interview with the child, possibly with an experienced policewoman and one other person, in pleasant surroundings in a room which does not produce the fear and trepidation that a courtroom does.

The video recording would be made available to the defendant and his counsel before the court hearing. The video recording would be available to the prosecution and the defence. When the case comes to court the judge should decide whether the video recording should be admissible or not. Based on the video recording, the child can be questioned in court or in another room by both prosecution and defence counsel. If the child, having heard the video recording, is asked whether it is true and agrees, she need not come into open court and give evidence in front of her abuser. There is a difficulty if the child gives a different story. The matter is then for the court to decide.

I have taken medical evidence on this point but when a child is found to have been abused that child must have medical treatment and therapy. A child often does not come before the court for two or three months. In my experience the child tells the same story—the facts are the same—but is then not in such a confused, distressed or unhappy state. In that way, the trauma to the child is minimised.

There is another aspect to this problem. Where the system is used in other countries, in many cases when the video recording is presented through the abuser's solicitor to the defendant, the defendant pleads guilty. From colleagues in Canada and America I understand that if the man pleads guilty he is of course sentenced, but there is not the terrible, dramatic trauma and distress of a full court case. There are of course cases where the defendant pleads not guilty. That man rightly has every possible help with his defence.

I speak for all of those and all of my colleagues who deal with abused children, their mothers, the family and the abusers. I hope that the Committee will be able to accept the amendment.

5.45 p.m.

Lord Edmund-Davies

I desire to add little to the moving speech made by the noble Baroness, Lady Faithfull. I merely want to say that we who support this amendment have thought deeply about the matter. I do not invite from that the inference that we have arrived at the right conclusion, but one mistake I can assure the Committee that we have not made is that we have not for a moment been unmindful of the necessity for the prosecution to prove the guilt of the accused.

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. One asks oneself quietly and unemotionally what the answer to the problem is. We have been burdened and distressed greatly by the volume of material that has reached us about children who have broken down in the witness box and failed to give evidence. The strain has been too much for them. In some cases, the delay has been too long. Health has been ruined. It does not stop there. There are a number of prosecutions which are never brought because the condition of the child is such that he or she is quite unfit to give evidence. The prosecution is therefore never launched. Those cases call aloud for some degree of attention.

By this amendment we seek to draw attention to that very great blot on our administration of justice at the present time. That must be right. What may well be wrong is the manner that we have adopted—although to the best of my small ability—in doing what we have done. It is naturally open to fierce attacks. Let there not for a moment be suspicion that we have forgotten the fundamental principle about which I have reminded this Chamber—to do the best one can. We have done the best we can. I thank you.

Lord Denning

I support the amendment in the strongest possible terms because it ties up with what I have recently said about closed-circuit television. As we have heard today, this will mean equipping a room next to the court where the judge and jury are. Who will go into this next door room? As we heard in answer to my last question, it will be specially equipped. But who will be there to examine the child? We have heard that counsel will be there—presumably counsel for the prosecution and for the accused. Who else will be there? I should have thought that the judge ought to be there so that he can ask questions of the witness or the child.

In other words, in that next door room one will have a miniature court with all the difficulties associated with it. The only people absent will be the jury. That system will not work with regard to child cases. In getting at the truth, the statement made by the child immediately afterwards, or as soon afterwards as possible, to a caring person who understands will carry conviction, if it is true, far more than any statement in a court of law later.

This clause will allow the video-recorded interview to be shown without the cross-examination and so on. It will allow that conversation to be recorded by a social worker, a woman police officer; or perhaps a doctor, too; someone sympathetic. The conversation between the child and that worker will be video-recorded. I would suggest that in any ordinary circumstances it is probably the best evidence available even though it is not subject to cross-examination and so on. It is recorded soon after the event. In other words, the recorded interview is to be an essential part in providing justice to the children. Let us remember that the judge will be there when the recorded interview is tendered in evidence. He will be able to examine it to see whether it should be allowed. With those safeguards it seems to me that this amendment should be accepted. I hope that Members of the Committee will so decide.

Lord Campbell of Alloway

I wish to support this amendment. The noble and learned Lord, Lord Silkin, spoke to both Amendments Nos. 38 and 39. I shall be very brief.

On Second Reading of this Bill, I took three points. First, should not a video-taped interview with a child be admissible? Secondly, ought there not to be a relaxation of the hearsay rule which excludes the immediate and first complaint? Thirdly, ought there not to be an amendment to the rules of corroboration? Amendments Nos. 38 and 39 are much to be welcomed. They meet in substance all these points. They meet them in a constructive and workmanlike fashion which is fair both in protecting the children and in safeguarding the alleged child molester who is wrongly accused.

Although I wholeheartedly support both amendments, in one aspect perhaps they do not go far enough. I would respectfully draw the attention of the Committee and the Minister to what I said at col. 1299 on 27th April about the state of Colorado's exception to the hearsay rule about complaints of children in such cases; making them admissible. I do so in the hope that perhaps at some later stage in this Bill consideration might be given to an even further relaxation in that regard.

Lord Harris of Greenwich

Let me begin by saying that I very much accept that powerful advocates have spoken in favour of these amendments, among them the noble and learned Lord, Lord Silkin, the noble Baroness, Lady Faithfull, who has had immense experience with regard to treatment of children, and the noble and learned Lord, Lord Edmund-Davies. It is also true that there has been widespread public concern about some recent cases; in particular one highly publicised case at the Central Criminal Court. I do not doubt that there are many in this Chamber and outside who would agree with the general approach of these amendments, and in particular the first.

There is, however, one matter which gives me some concern. I had no difficulty with the introductory part of the amendment. I take the point of the noble and learned Lord, Lord Edmund-Davies, that there is advantage in getting a video-recording soon after the alleged offence. That is a persuasive argument. One has to recognise the immense gap of time that sometimes exists between the commission of the alleged offence and the trial at the Crown Court.

Perhaps the noble and learned Lord, Lord Silkin, or indeed the noble Earl, will help me with this matter. I take the point that the noble and learned Lord, Lord Denning, made that discretion for the trial judge is provided in subsection (3) of Amendment No. 38. However, we then come to subsection (4). As I understand it, it is said that there is nothing to prevent the child who has been interviewed from giving evidence in person. If that child gives evidence in person there is no objection to the child being cross-examined. But what happens if the prosecution, having won its argument on subsection (3) of this amendment, says, "I have no intention of calling the child"? The man concerned may be facing a charge on which, if convicted, he could be sentenced to 10, 12 or 14 years' imprisonment, or, in some cases, life imprisonment.

Lord Hailsham of Saint Marylebone


Lord Harris of Greenwich

What happens if, through counsel, he is then denied the right to cross-examine that child because the only defence he has is a direct attack on the evidence of the child who said that he committed the offence? If we are to have video recorded interviews in future, there has to be an absolute requirement that the child has to be available for examination at the trial, otherwise I fear there is a real risk that in some cases there will be a grave miscarriage of justice.

6 p.m.

Lord Hailsham of Saint Marylebone

I make these observations with very great diffidence and even greater reluctance because this amendment has been supported from all quarters of the Committee. It has been supported by noble Lords for whom I normally have the deepest respect and it is backed from outside by organisations such as the National Society for the Prevention of Cruelty to Children and the Church of England Children's Society, which I am in the habit of supporting and which my family has supported for very many years.

I hope that before the Committee accepts the amendment it will realise what my understanding is of what it is required to do. In relation to an earlier amendment I said that we must remember that 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. We must do nothing to mitigate that in what we do, simply out of our detestation of the offence or our sympathy with the victim of it. whether it is murder, rape or molestation of a child. Indeed from one point of view the more detestable the offence the more important it is not to undermine either the burden or the standard of proof.

I quite understand from my noble and learned friend, Lord Edmund-Davies—who is one of those whom I referred to among those for whom I have the greatest possible respect—that the amendment does not mean to do that in the least. But let us consider quite coldly what it is we are being asked to do with this amendment. It is utterly different from the amendment which we were discussing some time ago, although both are concerned with video interviews and both are concerned with the difficulty facing those of us who have participated in trials of child molestation or rape (or rape of adults for that matter). The difficulty is not the fact that the judge is wearing a wig and it is not concerned with the formality of the court. It is that it is intrinsically extremely difficult for a victim to relive his or her experience in public and to recall it in words, possibly after a period of months.

The earlier amendments sought to get rid of that problem, and I agreed with them, by having a means of screening—perhaps by means of a video apparatus in an adjoining room—the alleged victims from the accused himself whom they very likely fear when he is seen across the courtroom in the dock. Such screening would still allow counsel and the jury to see the evidence at the time of the hearing and to hear the victim cross-examined by counsel representing the interests of the accused—a difficult, responsible and a sometimes extremely unpleasant task which counsel has in the nature of things to perform in the interests of justice.

If I have not mistaken it, this amendment does something completely different from that, different in kind and different in purpose. As I see it, there is a preliminary recorded interview which has to be undertaken by leave of the judge—though I do not quite know how that is to be done if it is to take place as other speakers have suggested immediately after the alleged assault because there is no judge in such a case. It bypasses the committal proceedings completely. It also bypasses (if I have not misread subsection (4)) the giving of evidence at the trial, whether by video link, closed circuit television or by the separate room referred to by my noble and learned friend Lord Denning. It bypasses the necessity for the victim to give evidence at all. Subsection (4) makes that absolutely plain. It makes it absolutely plain that the child, the victim, may give evidence but does not have to. The victim may give evidence against his accuser before the jury but does not have to. What is provided by the clause, subject to any discretion that a judge may choose to exercise under the latter subsections—but how judges are expected to exercise such a discretion I am bound to say I do not quite know—is that a person will be convicted of a serious assault upon a child without that child having given evidence at all, on the basis of an interview video-recorded before the case had started and without any right of cross-examination or any necessity whatever for the child to attend the trial—

Lord Paget of Northampton

Or corroboration, my Lords.

Lord Hailsham of Saint Marylebone

— and as the noble Lord opposite quite rightly says, in theory at least, also without corroboration. No doubt the judge will have to warn the jury of the danger of recording a conviction without corroboration. He does so in every child case at the moment. If he does not, the conviction is invariably upset. The judge also has to tell the jury in such circumstances that they may, nonetheless, convict on the uncorroborated evidence of a witness, and that is what he would have to do under the present proposals.

I must say, even if I stand alone on this matter, that I think this is a revolutionary suggestion put forward with the best motives by a number of extremely well-informed and responsible people but which is nonetheless revolutionary for that. It must undermine both the burden and the standard of proof required before one has conviction of an absolutely detestable crime.

I wonder whether the Lord Chief Justice has been consulted. My noble friend Lady Faithfull said that various bodies supported this, but I wonder whether the working judiciary—who will have to operate this scheme if it is adopted—have been consulted on its operation or even on its draughtsmanship. I hope that the Committee does not run away and fail to understand the nature of what it is doing, because in this important field of law it seems to me it is acting flatly in contradiction of all the established rules of criminal procedure.

We have seen in recent months a good deal of cause to question the methods of interrogation of children done at interviews by those who mean them well. I had cause to remind one of my noble friends on the Front Bench about the methodology adopted in the Cleveland cases where so-called explicit models have been used and suggestive questions put forward and total ignorance has been shown of the tendency of the child to give the answer he believes the adult wishes to hear. I really do wonder whether we are not being bounced into this and I should like to think about it a great deal more before I gave my adhesion to it.

Lord Simon of Glaisdale

The Committee has now had the inestimable advantage of hearing well-informed arguments from extremely experienced people on both sides of this question. In one respect this proposal is not as revolutionary as it might appear at first sight. The hearsay rule is already subject to this exception. If there has been a sexual assault the person who has been assaulted, the complainant, can give evidence, and other persons can give evidence to the same effect, that a complaint was made immediately or shortly after the alleged assault. But that is not evidence of the fact of the assault. It is merely evidence of consistency of conduct. I am glad to see that my noble and learned friend Lord Hailsham agrees with that statement of the law. The judge will very carefully direct the jury that they are not to take such a complaint as evidence of the alleged assault.

This proposal goes further. In the first place it is not limited to sexual assaults. I do not think my noble and learned friend was quite right in saying that the complaint must only be received with the leave of the judge. The requirement is that it should only be admitted in evidence if the judge consents—

Lord Hailsham of Saint Marylebone

That is what I intended to say.

Lord Simon of Glaisdale

This proposal is revolutionary in two respects. The first is implicit in what I have just said in that the fact of the complaint and the subject-matter of the complaint is evidence not merely of consistency of conduct but of the guilt of the accused; namely, that the offence was committed. The second respect—and this point was made both by the noble Lord, Lord Harris, and by my noble and learned friend—is that there is no requirement for the complainant to give evidence at all or to be subject to cross-examination. I suggest that we ought to have an open mind about the admissibility of a complaint immediately after the alleged offence as being evidence that the offence has been committed. It would require very careful direction by the judge of the weight to be given to such a complaint. It seemed to me that the objection raised by the noble Lord, Lord Harris, and by my noble and learned friend is quite conclusive. One cannot allow this kind of evidence to be adduced as evidence of the offence without any opportunity being given to the defendant to test it.

I therefore make the plea that the noble and learned Lord, Lord Silkin, should withdraw this amendment and allow more thought to be given to the whole subject-matter, it being viewed sympathetically but nevertheless being subject to the fairly onerous objections that are being put forward against it, in particular to the fact that the statement would be evidence of guilt without any possibility of it being tested on behalf of the defendant.

6.15 p.m.

Lord Paget of Northampton

I should like to say one thing to the noble and learned Lord, Lord Hailsham. He most emphatically will not be alone. I have not always agreed with what he has said and we have clashed on occasions. But tonight I thank him very profoundly. I hope also that what the noble and learned Lord, Lord Simon, has said as to the withdrawal of this amendment will be attended to by my noble and learned friend.

The noble Lord, Lord Campbell of Alloway, referred to the bringing in of evidence; the immediate complaint. I do not find it in the amendment. It is not there. If it were there I would agree with that, it being very clearly understood, as the noble Lord said, that that would be evidence not of the facts stated but of the consistency or inconsistency of the child from the start.

Lord Campbell of Alloway

The noble Lord misunderstands me. I was not referring to that in relation to Amendments Nos. 38 or 39. I was only asking for consideration to be given to the situation which would produce this, which was the law of the state of Colorado.

Lord Paget of Northampton

I should like to talk a little about my own experience in this matter. I am the father of four adopted children who were war orphans. All of them are now the parents of very happy and successful families. It was an arrangement which could not have gone better but it taught one something about children. Children do not speak the truth naturally. Truthfulness is no part of human nature; it is part of the education of a child and nothing else. The point at which a child begins to have any respect for truth is the point when his education begins to succeed. In the normal way children live so much in a world of their imagination. Another point is the tremendous and emotional suggestibility of children.

When the noble Baroness, Lady Faithfull, was speaking her warmth, passion and belief came very much to my mind. I do not think there is a child who would disagree with her for five minutes. Any evidence which she obtained in those circumstances is evidence I would find totally unreliable. That applies so much to social workers. The intensity of their feeling is injected into the child. There are very few children particularly in a girls' school who are not passionately in love with some of the mistresses—one or more. Children are very loving little things, particularly girls. They fall tremendously under the influence of the desire to please. It is not bad. It would be a bad schoolmistress whose pupils did not often fall in love with her. She must not exaggerate it. She must not take it too far.

Children of three and four and under can be passionately in love, and to adoration is a very short step. I disagree with the idea that the words of those children shall bring utter ruin to an accused and everything shall be built up in these artificial circumstances, with the possibility of this awful injustice so apparent. I find myself entirely with the noble and learned Lord, Lord Hailsham, in this. This is not an amendment that we should have.

Lord Hutchinson of Lullington

Perhaps I may make a contribution to this debate as one who has had to cross-examine a lot of children in my time. It is the most agonising job you can possibly have as a cross-examiner.

Lord Paget of Northampton

I could not agree more.

Lord Hutchinson of Lullington

May I go a little more deeply into what we are discussing and put in a plea that at the end of our debate we should give time for further thought and further consultation before taking any decision on the matter?

I should like to make myself clear as to my views at the moment. I agree entirely with the abolition of any requirement for a child to take an oath; the abolition of the complex rules of corroboration; the abolition of any requirement for the child to give evidence at the commital proceedings: no child to be examined at a police station; and the power of a judge to withdraw a case at any stage. I would personally commend the attitude of the Government in the other place at Committee stage, which seemed to me to be absolutely admirable because it came to be, "Wait, while we carry out the research that we have under way".

If it is essential, as I think it is, to sweep away the oath and corroboration then surely the judge must have a duty to warn the jury of the dangers of convicting on the uncorroborated evidence of a child. Here it is only permissive in the amendment. It seems to me that it is similar to the situation when people give evidence of identification—that there are inherent problems about identification and about the evidence of children which do not appear necessary to members of a jury, and that therefore there should be a warning.

All the doctors seem to agree that whereas most young children tell the truth, in about 10 per cent. of the cases which are gone into it is found that children simply do not tell the truth. Therefore we have in any event the dangers of the 10 per cent. Children of course can withdraw absolutely from answering questions not only because of the appearance of the court and the lawyers but for a whole host of other reasons—fear, shame, guilt, and so forth.

I agree very much at the moment with the idea of the child giving evidence in another room through a video link in the presence of the judge and the advocates round a table, dressed in ordinary clothes, with the proceedings visible to the jury, the defendant and the public. That is a possible way of doing it.

My other disagreement is really the one that the noble and learned Lord, Lord Hailsham, has spoken of so eloquently. I can see absolutely no way in the end that you can avoid direct contact between the child and the advocate. There is no way of avoiding that if justice is to be done. When a teacher, social worker, doctor or parent is accused and his or her whole career is at stake on the whispered words of a small and highly attractive child, you cannot possibly get rid of the contact between the advocate and the child.

The most difficult area seems to me the original video statement. We must go slowly here. My own feeling is that perhaps we could start with taking a video as the first statement of the child, to be exactly equivalent to the witness statement of the adult, but that the first statement taken by an impartial person should form the statement of the child which would go into the case simply as a statement. Of course if Clause 24 of the Bill regrettably remains, the judge would in certain circumstances by entitled to allow that video statement as he is at the moment going to be allowed to put in a witness statement, so that in that sense what is in this amendment would be already provided for in the Bill as it stands.

I have talked to doctors at Great Ormond Street, to lawyers in the Family Division, and also to psychiatrists at the Tavistock Clinic, and it appears that clinical diagnosis of children, examining them and so on, is totally different from forensic diagnosis. In the clinical diagnosis—and indeed it is not even agreed among the experts what is the better way of going about it—you will ask leading questions repeatedly in order to discover whether the child is a child who answers the questions in the way that it hopes the questioner wants it to answer. Therefore you will want to ask that child a great number of leading questions in order to form a view on whether it is telling the truth or simply going along with what one is putting to it. Of course in a forensic diagnosis it would have to be absolutely the opposite—never asking a leading question at all.

At the moment all the expertise in this matter is limited in the country. We will legislate for the whole country, but at the moment the expertise is limited in certain areas and is still progressing and developing. It would be the greatest possible danger to put absolute trust in an original statement and to make that original statement the key document in any trial, because then that original statement would become such a formality, and become so overwhelming in importance, that it would be extremely difficult to do justice to the person accused.

There must obviously be more pilot studies just as there were with tape recording. Surely a real attempt could be made to achieve consensus between the medical side and the legal side. Above all, the one point that really matters is the welfare of the child. Securing a conviction may not necessarily help or protect anybody. Some child molesters are pathetic and inadequate people. The spectrum of this whole matter is very broad.

I understand that there is a great increase at the moment in passive abuse—that is, making children watch horrific videos, or making children watch horrific behaviour between adults. You have that at one end of the spectrum and at the other end you have the pathetic old man who sits in the park giving out sweets to children who collect there every day and taunt him, and then indulge in what they call "rude things".

This whole spectrum of sexual matters in relation to children is so broad that I urge the Committee not to jump before further inquiries have been made and further attempts have been made to get a consensus between the professionals. I suggest that we build on the Bexley experiment and on the experience of the professionals. All of us must be pulling in the same direction on this highly important matter.

6.30 p.m.

Lord Mishcon

How right I think it was at the very beginning when I answered from the Front Bench the courteous challenge of the Minister as to where the Opposition stood on some provisions of the Bill! The one thing that I should have regretted very much, for the dignity of the Committee, is if, now that we have indulged in this debate—which has been painful for many people and certainly very mind-searching—the Division Bell had rung and people had wandered in who had not heard one single speech and cast their votes in one Lobby or another in a matter which affects the lives of so many of our children and others in the country. It has been a good debate. I should have thought those who talked about having to consider the matter further were correct.

I wish to give a personal view. The noble and learned Lord, Lord Hailsham—what a delight it is to hear his observations from whatever part of the Chamber they may come!—said that this was a revolutionary suggestion. I have heard him talk before about the need at some time for revolutionary suggestions, and he has become very impatient with those of us who thought that some of his suggestions were too revolutionary.

It may be that we have to make a revolutionary change when we are considering the alarming number of child abuse cases that appear to be occurring in this country and possibly generally in the world. I do not know what has caused it; I do not know whether in the past these cases did not come to light.

One of the difficulties with which we have to contend is this. There is no doubt that the appearance in a court of law of a child who is a witness or the complainant may do more harm to that child psychologically than the original assault—if assault there was. It is one of the exceptions to the general rule. One cannot talk in terms of a person who has been robbed being in a worse position through having appeared in a court of law when the evidence that he gives is the truth and it is believed. The case of a child who gives that evidence and gives truthful evidence is worse at the end of the day, whatever the result of the trial. Because one is looking therefore at what is an extraordinary happening in our courts and an extraordinary evil about which we have to do something, maybe we have, with care, to have a revolutionary change in these cases.

I was interested to hear the noble Lord, Lord Hutchinson, say that the evidence he had from some of his medical friends was that 10 per cent. of the children they saw told lies. I wonder whether doctors, if consulted about the percentage of their adult patients, would give such a low percentage. It appears that the children do not do so badly from the point of view of veracity. There are of course some children who, because they are imaginative, because there is some psychological upset or because they want to say what they think an adult policeman would want them to say, may well tell lies.

One of the errors that might have been made in the debate is that we have almost adopted the suggestion that what we are doing by admitting a statement of the kind that we are envisaging is saying that that statement will be deemed to be conclusive evidence of guilt. That is not what is said in the amendment. It is merely admissible evidence subject to all the safeguards that obviously would be administered in a court of law.

The one constructive suggestion that I have to make, if I may do it with the Committee's patience, is this. I was very much struck—we must be—by the dangers of a statement being admitted where there is no opportunity at all to cross-examine. I was conscious of the fact that there will be cases where there will not be that opportunity. It may be that the child falls ill; it may be that the child, as in the case that was brought back to our memories, is in such a state after first statements have been made that the child cannot go on to give evidence and the case has to be dropped. I am not content, and I do not think that Members of the Committee are, to see matters of that kind repeated; but there must be a safeguard.

I respectfully suggest that, among those matters set out in subsection (3) of the proposed new clause in Amendment No. 38 as to what the court has to take into consideration, we should include the consideration whether it is intended that the child whose statement has been taken is to be called as a witness to give evidence so that the accused is able to cross-examine. It may be only in those cases where medical evidence is such that the child ought not to give evidence that the judge would even consider admitting the statement. That may be the safeguard that we should have.

We cannot leave the situation so that there is a video link only. We must somehow or other—in addition to all the protection to the accused by way of the principles that the noble and learned Lord and other noble Lords have adumbrated and repeated this afternoon—ensure that the situation is not to be left in this way by Parliament. The spirit of the amendment is right, but we may have to do something to procure appropriate defences and protections in order to deal with the accused. Something along these lines, I suggest, must be done.

Lord Hooson

I have considerable sympathy for the amendment. It is the most constructive effort that I have seen to deal with this very difficult area of the law.

From the point of view both of the prosecution and of the defence, there appear to be great advantages in having a video at the first opportunity that occurred to interview the child as admissible evidence. I have difficulty in estimating what weight should be given to that evidence and whether it would be right—which I doubt—for this to be the sole evidence upon which conviction might be based. That, I think, would be wrong.

As I listened to the debate, my mind was taken back to a book that I read many years ago—a very good book—A High Wind in Jamaica by Richard Hughes. Among its merits is a remarkable description of a trial at the Old Bailey of pirates in the West Indies on twin charges of piracy and murder.

It so happens that in the book the children were present in a cabin with the Dutch captain of the boat and their loyalty, during the exciting time when the pirates took over the ship, gradually shifted in favour of the pirates. When the captain of the ship (who was tied up) was rolled over by rope towards a knife, one or more of the children picked up the knife and stabbed him to the heart in order to prevent their favourite pirates from being apprehended.

Continuing the novel, a year or so later they were giving evidence at the Old Bailey, and of course the expectation had been built up of them—the expectation by their parents, of the media and of the police in their interviews—gradually affected the children. They could not bring themselves to say what had actually happened out of loyalty to each other. They could not bring themselves to bring evidence that the pirates had done it, as everybody assumed they had, because they knew that would be wrong. They over-dramatised the situation because of the atmosphere of expectation that had grown around them. And at the trial it is described how they broke down at the vital part of the evidence and the judge discouraged any further cross-examination. Everybody assumed by inference that the pirates must have committed the murder, and they were convicted.

It is a very interesting study of the reaction of children in this situation. However, in respect of this kind of evidence—if you translate this evidence to that situation—if one had seen the early interviews of the children it would have been of infinite help to the defence. There is a great deal to be said for going in this direction. I do not pretend to be able to estimate how children react in a given situation. They can be the greatest witnesses of truth possible and they can be the most imaginative witnesses of untruth as well. If we were to move in the direction of this amendment it would be of great benefit generally in the discharge of justice. The only thing that requires maturer assessment is the weight to be given to this evidence and whether it would be possible—I do not think it would be—for anybody to be convicted on this kind of evidence alone.

Baroness Macleod of Borve

Perhaps I may very briefly thank my noble and learned friend Lord Hailsham for giving us such a wonderful example of his brilliant knowledge not only of the law but also of people. I go along wholeheartedly with what he said and also with what other Members of your Lordships' Committee have said. I hope that the Government will either throw this out or take it away.

6.45 p.m.

The Earl of Caithness

Before I come to the amendment, I should like to say at this stage that the noble and learned Lord, Lord Silkin, the noble Lord, Lord Hutchinson of Lullington, and my noble friend Lady Faithfull referred to corroboration, which refers to Amendment No. 39. I do not wish to say anything about that amendment, which is entirely separate; so I hope the Committee will not think me discourteous if I do not refer to it at this stage. I shall have something to say about it later.

This amendment has led us—I agree with the noble Lord, Lord Mishcon—to a most excellent debate on very difficult and important issues. We are concerned with the question of whether a video recording of an interview with a child—conducted, say, by the police or social workers—should be admissible evidence in subsequent criminal proceedings. While the clause covers all proceedings, I am sure that the main concern your Lordships will wish me to address is whether the evidence should be admissible at trials of alleged child abusers. I shall limit my remarks to such cases.

Before dealing in detail with the issues raised by this clause, I think it would be helpful if I set our debate in the context of what the Government have done and are doing to combat the evil of child abuse. I am only stating the obvious if I point out that we keep under review the criminal law which protects our children and we are ready to change it as quickly as possible if a gap is revealed.

The Police and Criminal Evidence Act 1984 enables the prosecution to compel a spouse to give evidence against a person accused of a sexual or violent offence against a person under 16. It permits the court to treat unjustified refusal to provide the police with an intimate sample as evidence corroborating, for example, the unsworn testimony of a child victim of a sexual assault.

The Bill before the Committee will increase the maximum penalty for cruelty to or neglect of a child from two years' to 10 years' imprisonment. In the clause which we have just debated, it will permit children to give evidence at the Crown Court by closed-circuit television in cases of sex or violence, thus sparing them the trauma of repeating their story in the presence of the alleged assailant.

Our consultation paper, The Use of Video Technology at Trials of Alleged Child Abusers, published earlier this year, sought views on precisely how this scheme should be implemented. We are grateful to those who have commented on this and also for the helpful suggestions made by several of your Lordships when we debated this clause.

My right honourable friend the Home Secretary has asked a group of experts—police, social workers, doctors and others—to prepare draft guidance for the police on the investigation of child abuse. This guidance is in an advanced stage of preparation, but clearly we must await the findings of the Cleveland Inquiry before it can be issued so that it can take account of recommendations made by that inquiry.

On crime prevention, we have been operating a publicity campaign for some years based on a set of easily understood rules for children to follow. In addition, the National Standing Conference on Crime Prevention has set up a working group to review existing publicity and publications, and to make recommendations. I understand that this group will report back to the standing conference shortly.

We are reviewing the disclosure of criminal backgrounds of those seeking to work with children. New arrangements have already been introduced to cover some groups, and others are in preparation. In the last Parliament we disapplied the Rehabilitation of Offenders Act 1974 to those working with children, so that they must declare spent convictions and may be excluded or dismissed because of such convictions.

My right honourable friend the Home Secretary has made it clear that those sentenced to life imprisonment for the sexual or sadistic murder of children must normally expect to remain in custody for at least 20 years; and those sentenced to more than five years for abusing children will be granted parole only when release under supervision for a few months before the end of the sentence is likely to reduce the long-term risk of reoffending, or in circumstances which are genuinely exceptional.

So far I have mentioned only initiatives coming from my own department; but tackling child abuse goes beyond the responsibilities of just the Home Office. What we in the Home Office are doing is only part of a wider programme which is kept under review inter-departmentally. I am sure we are all agreed that good practice to reduce and manage child abuse depends largely on close working between local agencies: the social services, the police and the health, education and probation services. Last year the DHSS issued a draft circular for inter-agency working which has been well received but which elicited a large number of comments. As with our own circular to the police, this important document cannot be issued in its definitive form until we have received the recommendations of the Cleveland Inquiry.

The DHSS has also set under way a training initiative, the second stage of which was announced earlier this year. So far it comprises six projects, including an Open University introductory course suitable for any of the professions, a training consultancy based on the National Children's Bureau and work at Great Ormond Street and the NSPCC. My right honourable friend the Secretary of State for Social Services will be keeping them under review to see what more is needed. These special projects are of course additional to the steady work to improve the standard of practice of local agencies working with families with children. Good preventive work is as important as rapid and sensitive action when abuse is disclosed and the DHSS has a continuing programme of support for this important aspect of our response.

Our White Paper published in January outlined our proposals for legislation on child care and family services, and I know that many of your Lordships eagerly look forward to debating that Bill. I believe it was right to set the scene so extensively because our record shows that we are more than ready to take action and will not shrink from radical reforms if we think they are necessary. But reforms must be justified and worthwhile. This is an emotive area. We must all beware of letting our hearts rule our heads. Proposals for change must be thought through and we must be certain that they will assist rather than simply hope that some good will come of them.

In the field of criminal law, which we are now debating, I think we need to consider two things when reaching a decision. First, how far will what is proposed actually benefit the child? Secondly, is the change in the interests of justice? It is in the interests of justice to see that a child victim is spared unnecessary anguish and that child molesters are punished. No one would disagree with that; but it is also in the interests of justice that an accused person is assumed to be innocent until a jury returns a verdict of guilty and that he receives a fair trial. Again, the noble and learned Lord, Lord Edmund-Davies, reminded us that we must not lose sight of that aspect of justice.

I take up the point of the noble Lord, Lord Harris of Greenwich, who was very ably supported by the excellent speech of my noble and learned friend Lord Hailsham of Saint Marylebone, the noble Lord, Lord Hutchinson of Lullington, the noble and learned Lord, Lord Simon of Glaisdale, and the noble Lord, Lord Paget of Northampton. One of the elements upon which a fair trial rests is the right of the accused to test the evidence against him. I do not wish to scrutinise this new clause with undue severity, but as it stands I am unclear about the defendant's right to test evidence tendered in this form. It speaks of the child "not being prevented" from giving evidence. Does that mean that the accused would be able to insist on cross-examination? If subsection (4) is intended to preserve the right of cross-examination of the child then, for reasons to which I shall come, I do not believe that this procedure will provide any significant benefits for the child. If this right is not preserved, then the rights of the accused to receive a fair trial would be seriously infringed. We could not support any proposal which undermined that fundamental aspect of our criminal justice system.

The Committee will be aware that in our consultation paper issued in May we sought views on whether video recordings should be more readily admitted at trials of alleged child molesters. Those tapes will, in the main, be prepared for the purposes of criminal proceedings or a criminal investigation. Under Clause 24 of the Bill there will be a presumption against admitting them, although the judge may allow their admission if he considers that he should so do in the interests of justice. I think it is worth recalling that in our debates on Tuesday evening Members opposite argued that even those limited relaxations of the law of evidence went too far.

The noble Lord, Lord Hutchinson of Lullington, although he was much more moderate tonight, spoke with great passion of the principle that untested evidence is inherently unreliable. He argued that the principle that no person should be convicted on untested evidence was—as he put it—one of the guarantees of a fair trial. The noble Lord, Lord Irvine of Lairg, moved an amendment the effect of which would have been to remove even the limited degree to which we propose that video recordings should be capable of being admitted.

As I explained, we need to consider any proposal against the twin tests of benefit to the child and interests of justice. We have not found it easy to reach a decision on video recordings but on balance we feel that easier admissibility would not meet those tests.

Most cases of alleged child sexual abuse do not end up in the criminal courts. This may be because there is insufficient evidence for a criminal prosecution, or because a prosecution would not be in the best interests of the child, or for other reasons. The important point is that most children who allege to the police that they have been sexually assaulted will not in the end have to give evidence at the Crown Court. At present a video recording of a disclosure interview with a child can ignore the strict rules of criminal evidence. Those are the kinds of tapes referred to by my noble friend Lady Faithfull, which are being made under the experiments at Bexley, and indeed at Newcastle, in Lancashire and other places. Such a tape may contain material which is irrelevant or inadmissible at a trial and the interviewer may use such techniques as leading questions and prompting. This freedom to gather as much information as possible by several methods is one of the main reasons why tapes can be such a useful aid to investigators. In one interview they can obtain from the child the information necessary for criminal investigation, care proceedings, medical treatment and therapy. That means that the child has to go through only one disclosure interview. The police, social services, doctors, psychiatrists and other caring agencies do not need to re-interview the child; all they need to do is watch the tape. All this would inevitably change if we enact that video recordings are readily admissible at trial. I need do no more than refer the Committee to the eloquent speech of my noble and learned friend Lord Hailsham of Saint Marylebone on this point. Indeed, the amendment recognises it because it would require the Secretary of State to issue a code of practice on how such interviews should be conducted.

Most of those who favour this move must accept that interviewers would have to be trained and that interviewing techniques would change. But those would not be the only changes. A tape prepared for possible criminal proceedings would be quite different from a tape prepared for medical or therapeutic purposes. It would not contain the same material and it would not use the same interviewing techniques. I fear the inevitable conclusion is that one disclosure interview would no longer suffice. During the investigation of the allegation, the child would have to relive her assault at least twice; once for possible criminal proceedings and once for all other agencies who need to know the story. Even if the Committee considers that the benefits at trial justify this—and I have doubts about that—what of the majority of children whose cases never reach the criminal courts? There are no benefits for them, but only a doubling of the trauma of investigation.

Let us turn to those cases that do reach court. Here the arguments appear to me to be particularly finely balanced. On the one hand, I can see that a recording made soon after the events to which it relates is likely to have an immediacy and freshness which would make it valuable to the court, and, viewed purely as a matter of principle, I can see no great objection to such recordings being admitted as evidence. It is also possible that admitting tapes might increase the number of guilty pleas, although it should be remembered that there is nothing at present to prevent a tape, where one exists, being shown to the suspect, and sometimes—as in a recent case—that brings about a confession.

On the other hand, we need to be clear that such a change would actually be effective, in the sense that I have described; that is, that it would make things appreciably easier for the child and contribute to a just result. On that score, I can see much greater grounds for doubt than those who support the amendment have so far been willing to admit.

Even with the introduction of closed circuit television, giving evidence will not be an easy experience for a young child. She is bound to be nervous, not to say afraid. I accept that repeating her story in response to questions from the prosecutor will be an upsetting experience. Would watching a tape of herself that was made some time earlier be all that much better for her? I can see it may be some improvement but I wonder whether it would be a significant benefit. Any possible benefit must be weighed against the undoubted disadvantage of her first experience of questioning being by defence counsel. Without a tape the prosecutor can settle the girl and get her used to being questioned about a traumatic incident; her first experience of the court is of being questioned by someone who appears to believe her story. In contrast, if a tape is to be of much use it should replace entirely examination-in-chief. The girl is not acclimatised to talking about her assault; she watches a distressing tape of herself describing the assault and is immediately faced with hostile questions from defence counsel who appears to disbelieve her entire story. Surely that is far more damaging to the girl and far outweighs any benefit from the fact that she has not had to repeat her story to the prosecutor.

The purpose of cross-examination is to test the truth and credibility of the evidence given by a witness. In child sex abuse cases the main witness will be the child. If the accused pleads not guilty he is stating that the child is lying and is not credible. His counsel will have to establish that in cross-examination. Of course, counsel will not bully the child, but he will test her evidence and test it well because that is his duty. Some commentators on our discussion paper felt that defence counsel would not press the child hard because that would be counterproductive with the jury. That overlooks the simple fact that unless the defence can raise a reasonable doubt as to the child's credibility the prosecution have made out its case and the accused will be found guilty.

This means that, if tapes are admitted on a regular basis, a child may very well be faced with increased stress. In cross-examination she is required to reconcile the statement on the tape made some time earlier with her present recollection. Most people's recollection of events changes slightly with time. Admitting a video tape may encourage more detailed cross-examination in the hope that discrepancies emerge, discrediting the witness. Again, admitting a tape seems likely to disadvantage the child rather than decrease her distress.

The majority of commentators on our discussion paper were in favour of readier admissibility of video tapes. But I have to say that most of them failed to address the point we made in that paper that this might make cross-examination a far worse experience for the child than present arrangements. The benefits that most saw in favour of video tapes would not materialise unless the defence failed to exercise their right to cross-examine or that right was removed by statute. Video tapes were seen as likely to reduce the distress suffered by children. But a close reading of the replies showed that this would only be so if the tape was the sole evidence received by a court and the child never had to give oral evidence. But as I have made clear, that cannot be so if the accused is to have the benefit of a fair trial. I have to put to the noble Lords who favour this clause that most of the supposed benefits of tapes would not occur unless we removed the right to cross-examination.

I should like to say a word about video recordings of interviews. There is growing interest in the use of video recordings of interviews with victims. This helps to avoid the need for the child to repeat her story and provides a means for others, who need to know of her experience, to see the interview. The videos can be of use, for example, to social workers involved with other members of the victim's family, doctors and senior police officers concerned to review the case. As suggested by the noble Lord, Lord Hutchinson of Lullington, they can be used to replace the statements which would be taken from an adult.

It is precisely because these recordings are so useful to a number of professions that they are not in a suitable form for court evidence. As such they are completely different to the sort of recordings for court purposes we are discussing here. But, nonetheless, I agree with the noble Lord that we should continue our work in that field. These are difficult issues where the arguments are, as I have said, finely balanced. Quite legitimately, opinions will differ on the best solutions to these appalling cases. For the reasons I have given, and after a great deal of reflection, we have concluded that the Bill as it stands strikes the right balance on the admissibility of video recordings.

That is not the end of the road. I do not think it is right for me to say that I can take this amendment away and see if we can bring it back at a later stage. I agree with what so many of your Lordships have said. This matter needs a great deal more discussion than we have had to date. The door is open. We are all trying for the same solution. We want to make it better for the child as well as obtaining all the justice that is inherent in our system. I do not think that this amendment gets to that position; but I am not sure that we could come back by Report stage with something that would improve it. I think it is a longer process.

Lord Silkin of Dulwich

I am quite sure that all noble Lords who have been present during this debate will agree on one thing at any rate, even if not on the ultimate result. It has been an extremely good and valuable debate. The issues in this delicate and difficult question have been very fully canvassed. The problem at the end of the day is to reach a conclusion on which way the balance goes.

In the circumstances it seems to me that, as so often, the advice of my noble friend Lord Mishcon is sound. We should use this evening's debate as a starting point to see both sides—the government side and that of those who put forward this amendment—and to see whether there are ways of getting closer together than we have succeeded in getting after 96 hours of debate.

Noble Lords

Ninety-six minutes.

Lord Silkin of Dulwich

It sometimes felt like hours but I am prepared to accept that I should have said "minutes".

The question of ensuring that the possibility of cross-examination, even if the witness is not tendered for cross-examination, can he left open is a difficult one which, clearly, my colleagues and I have to consider. We have to consider whether, if that is not possible, one is justified in derogating in this type of case from some of the protections to which defendants have been entitled over the years; and whether such derogation goes substantially further than some adopted in recent times, for example, in cases of fraud, which I would not regard as important as this type of case. We have to consider whether those derogations are acceptable.

But those are only some of the points that clearly will need to be very carefully considered, not only by those here but also by the various organisations who have taken a strong view and have supported or promoted this amendment. In those circumstances, it seems to me that it would be right to beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Viscount Davidson

Before moving that the House be resumed, I suggest we return to the Committee stage at 10 minutes to eight, if that is agreeable. I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.