§ 165A Line 5, after ("it") insert ("after the diet of trial has been called")
§ 8.15 p.m.
§ Lord McCluskey
My Lords, I beg to move Amendment No. 165A. This amendment sharply raises the question of when the application must be made. I accept that the court may, by act of adjournal, prescribe an appropriate procedure. It is certainly competent for the court, by act of adjournal, to do that. However, in a matter of this kind Parliament should determine when the application falls to be made. That would be in accordance with the usual type of provision in the Criminal Procedure (Scotland) Act 1975, as amended. I simply note that point.
My subsequent amendments are related. Amendment No. 165B provides a mechanism for the judge to discover upon what basis he should exercise the discretion conferred upon him. I do not believe a judge can tell, by looking at the indictment, by being told the age of the child or the nature of the evidence the child is likely to be called upon to give, the age and maturity of the child in order to determine the application. Amendment No. 165B allows the judge to interview the child. That also fits in with the timing of the application. One does not want to disturb the child by bringing him or her through to see the judge in chambers or taking the judge to see the child in chambers in the child's home town perhaps a week 1629 before the trial. That should be done at the start of the trial. The judge can then make a judgment on the age and maturity of the child.
It is not clear from the statute how the evidence the child is likely to be called upon to give is to be brought to the judge's attention. Normally a judge at a trial hears the evidence when and only when the jury hears it. In making a judgment about such an application a judge must hear something of the child's evidence beforehand. How is that to be done?
I have great respect for and belief in the system of public prosecution in Scotland. I believe that the Lord Advocate, his deputes and the procurator fiscal see themselves as being ministers of justice. For that reason I believe that if one has a precognition drawn up by the fiscal on a proper basis, that is a document the judge could look at without undue prejudice. Of course he would not refer to it for any purpose other than to make a judgment about the maturity of the child.
I shall deal with Amendment No. 168A before dealing with Amendment No. 167. Amendment No. 168A seeks to reduce the age from 16 to 12. The point I make here is simply based on my experience as a prosecutor, as counsel who has acted for the defence in such cases, and as a judge, including recently. This provision applies not just to the alleged victims of crimes but to all kinds of witnesses. It is extremely common to find persons under the age of 16 giving evidence in a case. It is common to find that a 14 year-old looks like an 18 year-old and sounds like a 22 year-old, but another 14 year-old looks like an infant. It is possible, therefore, that one must find a system where the judge, perhaps warned in advance by the Crown wearing its Minister of justice hat, has a better way of assessing these matters. I am not sure how that can be done but the judge must make a judgment.
What I have done, following the recent guidance from the Lord Justice General, is to cause the young witness to be brought into court. Sometimes one is surprised to find that the young witness has a beard or a moustache and has shoulders six feet wide. When he speaks with a husky voice one realises that there is no need to give a warning or handle him too delicately. I often say to the jury, "It is for you to assess what you make of the reliability and dependability of this child as a witness, having regard to what you make of him or her". The ultimate judgment must be made by the jury. Therefore, there should be a mechanism and if the Lord Advocate is saying that it can properly be provided in Acts of Adjournal perhaps that is a sufficient answer.
There is a separate point which arises under Amendment No. 167. This relates to where a child gives evidence that he recalls having identified, before the trial, a person who is alleged to have committed the offence and the evidence of a third party—that will mean a policeman in 99 out of 100 cases—as to the identification of that person by that child prior to the trial shall be admissible as evidence as to such identification".1630 That is the position now. There is a whole series of cases, of which the leading case is Muldoon v. Herron —the seven judge case. I believe that from that case, and subsequent cases, a rule was evolved under which, if a witness says, "Yes, I picked out a person at an identity parade and I knew at the time that that was the person who committed the crime and who I am speaking about in my evidence, but I cannot now identify him", a policeman can then say that the witness picked out X. That is a sufficient link. That is certainly admissible as evidence, leaving aside the question of sufficiency. The question of sufficiency is a different matter, as the Lord Advocate properly said. Therefore, the new clause in Amendment No. 167 is unnecessary, given the present state of the law. I hope the Lord Advocate will deal separately with that. I commend Amendment No. 165A.
Moved, That Amendment No. 165A, as an amendment to Commons Amendment No. 165, be agreed to.—(Lord McCluskey.)
§ Lord Macaulay of Bragar
My Lords, we are dealing with an important innovation into the law of Scotland and it is recognised as such on this side of the House. We realise that we must move with the times and take advantage of modern means, first, of obtaining evidence and, secondly, of recording it.
I hope I am correct in saying that this new clause emerges from a series of proposals from the Opposition in the other place. I make no criticism of the new clause being included at this late stage because I believe there is general concern not only among the community but within the legal profession as a whole that the welfare and health of children who are either victims of violence or who are witnesses to crimes should be properly and reasonably protected while maintaining the balance necessary to ensure that justice is done to both sides. Where the age and maturity of witnesses leaves them open to fear and intimidation it becomes even more important that evidence should not be lost.
However, there are reservations on the lack of detail in the approach of the courts when applying this clause. That aspect has already been focused upon by the noble and learned Lord, Lord McCluskey. As a sitting judge, he has pointed to the problems which the courts face.
The gap in the amendment arises from how a judge is to decide on what is cause shown and what criteria are to be applied. Who is to tell the judge what the possible effect may be? Is it the mother, the social worker, the policeman or a combination of all three? Is it the child itself? Is the judge to be allowed to have the proof before the child gives evidence, including hearing the child in court or in chambers? Of course, if the judge hears the child in chambers without the accused being present that is a fundamental breach of the rule that the case should proceed in the presence of the accused. I merely pinpoint difficulties which may arise.
What tests are to be applied under subsection (2) (a) and (2) (b)? Like the noble and learned Lord, Lord McCluskey, I take the Lord Advocate's assurance that 1631 this matter can be dealt with by Act of Adjournal. This is a step that should be taken at a moderate but efficient pace to see how it works. I am therefore glad to hear from the Lord Advocate that the operation will be monitored.
The noble and learned Lord, Lord McCluskey, pinpointed an important issue in relation to age. We tend to go overboard about children these days. We all know that children under 16 can be angels. We also know that they can be evil. It would not be for the first time that one has heard of a child, allegedly sexually abused, giving a very vivid account of what happened to her, in a sexual context, at the hands of her brother or father but who ultimately turns out to be an out and out liar who has put the accused person through a great de al of publicity and stress, sometimes leading to break-up of marriage, loss of home and loss of job. That is why we must be careful and there is considerable merit in the proposal by the noble and learned Lord, Lord McCluskey, that consideration should De given to reducing the age from 16 to 12. In our debates today the age of 16 seems to be a magic number. We have heard it in the ecclesiastical sense and now we have it in the evidential sense.
It is not clear to me what a live TV link is intended to be and how the use of it will work in relation to the right of an accused person. It is a fundamental right of any accused person that his trial should be conducted in his presence. There is no in-built provision in the Bill, as I read it, for the Lord President or the Secretary of State to lay down guidelines of any kind on how the courts are to approach the issue of cause shown. It may be that that is unnecessary because we have a proud tradition within Scottish law that our judges not only have knowledge of the law but also exercise common sense and that they can be trusted.
It is important to note that this new procedure is not limited, even on a preliminary basis, to witnesses in sexual or child abuse cases. It appears to relate to any cases. Subsection (3) (b) states:In considering whether to grant an application…the court may take into account, where appropriate…the nature of the alleged offence".That seems to leave it open for this form of evidence to be applied to any kind of case, sexual or otherwise. Although the Government have said that they will monitor the application of this useful clause—I regard it as useful —I suggest that it would be appropriate to have a pilot scheme (in the real sense of the word and not, in the academic sense, an experimental one) in perhaps two areas to see how it works.
We must guard against the undermining of our system of justice and the presentation of evidence, which has in the main worked well. It will be interesting to learn how many cases have failed because a child witness brought before the court has not given the expected evidence. Speaking for myself, I cannot remember many such cases—in fact, very much the opposite. We have found, particularly in defending people, that there is nothing more devastating than the evidence of a five year-old child.
One of the problems nowadays—I do not criticise the people involved—is that by the time a child gets to 1632 court to give evidence the story has been filtered through about three different processes and you begin to wonder whether the story that the child is giving has any evidential basis. It would be interesting to know the percentage of the loss of cases involving adult witnesses failing to speak up. That may be a matter for another debate. No doubt it will be possible in due course for this type of evidence-giving to be extended to adult witnesses who have the same fears. For example, a woman in a rape case or a case of serious assault might very well seek the protection of this type of evidence-giving.
I sound a warning that if we go too far it may be the thin end of a destructive evidential wedge regarding the procedure of justice and presentation of evidence in Scotland. Nevertheless, with those reservations, I welcome this forward looking amendment.
§ 8.30 p.m.
The Earl of Balfour
My Lords, I wonder whether a procedure could be introduced into Scots law so that a case involving a child as a major witness could be given precedence over others in order to bring the case forward. What worries me as a justice of the peace is that on average it takes nine months or a year for a case to come to court. In cases involving children, is there any way in which the diet of trial can be fixed more quickly? What has been said in the House tonight is very important. It is difficult to judge what kind of evidence a child will give. Some children are very good and some are appalling, regardless of age. I wonder whether laying the matter down in primary legislation is the best way of doing it.
§ Lord Morton of Shuna
My Lords, I apologise to the House and especially to the noble and learned Lord the Lord Advocate for missing the beginning of this debate. There is a problem about the measure as it is framed, bearing in mind Amendment No. 165A in the name of the noble and learned Lord, Lord McCluskey. The whole suggestion seems to be that the decision is to take place before the child starts to give evidence. Those of us who have been involved in criminal trials have often encountered the child who breaks down at the start of giving evidence, in the middle of giving evidence or at some stage after having started giving evidence. Is it envisaged that the live television link will then take place or be available? If it is so envisaged, will that type of trial suddenly be adjourned to a different court because there is not the available facility? Such a problem does not seem to be recognised.
I fully agree with the remarks of the noble Earl, Lord Balfour, about delay in cases involving children. I have no doubt that the noble and learned Lord the Lord Advocate agrees with that too, and agrees that delays are in general a bad thing.
§ Lord Fraser of Carmyllie
My Lords, I am grateful to those who have contributed to this debate. It is an extremely important matter. Now that my noble and learned predecessor has arrived, I should like to pay my regards to him. It was his reference to the Scottish Law Commission which set the matter under way.
1633 It should be appreciated that we have gone at this matter cautiously. The Scottish Law Commission report on the evidence of children and other potentially vulnerable witnesses was published in February this year. The report made a number of recommendations primarily intended to benefit child witnesses in criminal proceedings. The commission went on to suggest that the new procedures which it proposed should also be available in civil proceedings and also, as the noble Lord, Lord Macaulay, appreciates, for vulnerable witnesses other than children. We have not gone as far and as quickly as those proposals might have led us. Nevertheless, this is a worthwhile set of reforms to introduce. They will not be without certain practical difficulties to begin with.
I envisage that in most circumstances the application will be made before the diet of trial. The noble and learned Lord, Lord Morton, raised a good question. I would certainly not rule out that in a particular case it might be necessary for the Crown at a very late date—indeed, once the trial had started —to make such application. But as he correctly anticipated, certainly in the first years of the introduction of such a change there would not be the opportunity in every court throughout Scotland to introduce evidence by such means. It is envisaged that in the initial period such equipment will be available in Edinburgh, for High Court trials, and in Glasgow, for High Court and sheriff court trials. It is also envisaged that in one courthouse in each of Scotland's six sheriffdoms provision will be made for High Court and sheriff court trials, building it up slowly and steadily and having regard to experience.
The observations of the noble and learned Lord, Lord McCluskey, about children are undoubtedly very valuable. Some youngsters in Glasgow show all the maturity, both in the evilness of their intent and in their physical build, to terrify a number of us. Others look weedy and feeble. However, the provision makes allowance for that. The court is enjoined to take into account the age and maturity of the child, the nature of the alleged offence, the nature of the evidence which the child is likely to be called on to give and the relationship, if any, between the child and the accused.
I do not envisage that the noble and learned Lord, Lord McCluskey, would want too often to see a detailed statement of the evidence. What I envisage more is that if the Crown —it is most likely to be the Crown although, as he said, it could apply to others —made the application, the judges sitting in the High Court would be looking to some serious and objective assessment of what impact or influence there would be on the child if he or she had to give evidence in court. In such circumstances a psychiatric report on how disturbing or alarming it might be for the child would be of greater assistance to the judge than anything else. In those circumstances I should not like to fix too rigidly the way things are done. It may be that just a statement from the Crown would be sufficient, 1634 supported by some other ex parte observation. If the judge wished to interview the child in chambers, that would be an appropriate enough course to take.
The noble Earl, Lord Balfour, referred to delays in cases involving children. I could not agree more. Cases involving children, particularly cases of a delicate nature, should be brought into court as quickly as possible and I hope that happens. Those accused of the worst cases involving children, particularly cases involving sexual abuse, are probably detained in custody anyway. The period for which they can be so held is, as the noble Earl doubtless knows, set out in statute and is probably tighter in Scotland than it is anywhere else in Europe.
The only matter on which I disagree with the noble and learned Lord, Lord McCluskey, is in relation to Amendment No. 167. I agree with his summary of the force of the decision in Muldoon v. Herron and related cases. However, he put in an important qualification, which I understand to be critical; that is, the witness must come into court and say "I have identified the person in the past at the police station. I am very sorry but I cannot make the identification now". In those circumstances it is permissible for the police officers to say that that witness did come to the police station and make an identification of the accused.
What is envisaged here is this problem. It is not that the child cannot identify the accused. In some of the worst cases, as the noble and learned Lord will appreciate, the accused may be the girl's own father, stepfather or uncle. One wishes to avoid subjecting her to the necessity of providing that identification in court. For that reason it is considered that the decision in Muldoon v. Herron is insufficient. Accordingly, we need this express provision which is provided for by Amendment No. 167.
§ Lord McCluskey
My Lords, the point has been recognised in relation to Amendment No. 165A. I hope that those who come to draft any act of adjournal will take into account all the observations that have been made by your Lordships in the course of this brief debate. It is very important that this experimental provision—because that is what it is, given the information put before the House—should be conducted and thought about very carefully.
I do not agree with some of the points made by the noble Lord, Lord Macaulay, concerning putting certain matters into the Bill. We are well accustomed to dealing with motions such as cause shown and others of the kind that appear here. In general, it is not desirable to put too much detail into a Bill of this kind. As I said earlier, the Renton Committee received evidence to that effect from the late Lord Justice Clerk and the noble and learned Lord, Lord Emslie, who was then Lord President of the Court of Session and Lord Justice General. I am quite content, but I hope that those who pray in the act of adjournal will read this debate.
The important point concerning timing is this: if the judge is to interview the child, I do not believe that that can be done after the trial has started. Once the diet has been called and the trial started, all the 1635 proceedings must take place in the presence of the accused. It would be destructive of the whole system if the judge were invited to interview a child and the accused had to be brought into the same room for that very purpose. That is why the timing is so important. I have no doubt that that matter will be thought about by the Lord Justice General and the other judges when they come to consider the act of adjournal.
On the question of identifying one's father, surely it is not necessary to point him out in court. When the child is asked, "Who did this?" the child will reply, "My father did it". That is sufficient evidence. I do not follow the Lord Advocate's point in relation to such matter. However, I have no doubt that this matter has been carefully thought about. If it is thought that there may be a possible weakness, then it is right that it shot Id be cured in this way. Therefore, I do not insist on my objection. I beg leave to withdraw the amendment.
§ Amendment No. 165A, as an amendment to Commons Amendment No. 165, by leave, withdrawn.
§ [Amendment No. 165B, as an amendment to Commons Amendment No. 165, not moved.]
§ On Question, motion agreed to.