§ House again in Committee.
Lord Silkin of Dulwich moved Amendment No. 39:
After Clause 30, insert the following new clause:
§ ("Evidence of child of tender years.
§ (2) In the said section 38, the proviso to subsection (1) thereof shall cease to have effect.
§ (3) In any criminal proceedings in which a child of tender years (whether sworn or unsworn) has given evidence or a video recorded 302 interview has been tendered in accordance with section (Video recorded interviews admissible as evidence), the judge shall consider whether in the light of all the evidence (including evidence as to the age of the child and the nature and seriousness of the offence charged) he should—
- (a) withdraw the case from the jury on the ground that a conviction would be unsafe or unsatisfactory; or
- (b) warn the jury of the danger of convicting on such evidence if uncorroborated,
§ 4) The power of the judge to withdraw the case in accordance with this section shall not affect his right to hold that there is no case for the defendant to answer.").
§ The noble and learned Lord said: I come now to Amendment No. 39, which I hope I can deal with briefly. Its main provision is to remove certain restrictions contained in the Children and Young Persons Act 1933 on the giving of evidence by young children. First, there is the restriction that they cannot do so unless they understand the duty to speak the truth; a term which will very often be the case in a philosophical sense but not in a sense of reality and today is quite unnecessary. Secondly, there is the proviso in Section 38 which deals with corroboration.
§ The new clause in subsection (3) provides that when a child of tender years gives evidence, whether he is sworn or unsworn, it is the judge's duty to consider whether, in the light of all the evidence—which of course includes the age of the child and the nature of the offence—he should withdraw the case from the jury as a conviction would be unsafe or unsatisfactory. Alternatively he must consider whether he should warn the jury of the danger of convicting on the evidence of a child of tender years, whether sworn or unsworn, if uncorroborated.
§ As regards safety, the last subsection provides that the power to withdraw the case is not to derogate from the judge's normal right to hold that there is no case for the defendant to answer.
§ This new clause is intended as part of a broad relaxation of the restrictions on the giving of evidence by children. Irrespective of the ultimate consequence of the new clause in Amendment No. 38, which we have just debated, Amendment No. 39 should be of value in this context. I beg to move.
The Earl of Caithness
This clause would repeal the existing law that a child's unsworn evidence must be corroborated. In its place, it proposes that the judge should consider whether the case should be withdrawn from the jury because a conviction would be unsafe or unsatisfactory or whether he should warn the jury of the dangers of convicting in the absence of corroborating evidence. It would also amend the criteria for the admission of such evidence.
I have already set out in some detail the Government's policy on child abuse and we have had a very useful debate about the conduct of these trials. It is against this background that we need to consider the question of corroboration. As the Committee knows, Section 38 of the Children and Young Persons Act 1933 requires the unsworn evidence of a child to be corroborated before an accused may be convicted. The Criminal Law Revision Committee considered this rule of law in their eleventh report and concluded that there should be no requirement of 303 corroboration except in sexual cases. For sexual cases they felt that,the danger that a child's evidence may be unreliable because of susceptibility or fallibility of memoryjustified retention of this rule.
Earlier this year, however, my right honourable friend the Home Secretary commissioned a literature review of the scientific evidence for and against the present corroboration requirement. This review will be published as soon as possible; we have placed pre-publication copies in the Library. That report suggests that there is no compelling scientific evidence in support of the view that a child's testimony is inherently unreliable. What little comparative research there is indicates that children are as good witnesses as are adults. In other words, there does not appear to be a sufficient scientific basis for a strict requirement that a child's evidence must be corroborated.
The Criminal Law Revision Committee recommended repeal in non-sexual cases and our report suggests that there is no justification for retaining the rule in sexual cases. It is everyone's wish that these cases should come to trial wherever possible and that those guilty of appalling crimes against children should be brought to justice.
My right honourable friend has therefore made it known that he favours the abolition of the strict corroboration rule. I can therefore gladly accept the amendment of the noble and learned Lord, Lord Silkin, in principle. I cannot accept it quite in the terms in which it has been tabled because, for reasons 304 which we might go into in debate if the Committee wishes, I should be reluctant to dispense with the requirement that before a child's unsworn evidence can be admitted she must understand the duty of speaking the truth. But I can undertake to bring forward suitable amendments to effect this change at Report stage.
§ Lord Silkin of Dulwich
I am grateful to the Minister for his undertakings and the way he has accepted the principle of the new clause. In the light of those undertakings, I am only too pleased to seek leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 31 agreed to.
§ Moved accordingly, and, on Question, Motion agreed to.
§ House resumed.