COMMONS AMENDMENT (Hansard, 25 October 1990)

§ Lord Fraser of Carmyllie

My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 165. In moving that amendment I shall speak also to Amendments Nos. 165A, 165B, 166 to 169, 274 and 275.

While there may be comments that this provision relating to children's evidence came in late, I take the view—which was clearly taken in another place—that it is to be welcomed that the opportunity was taken to include in the Bill provisions which will enable a child witness to give evidence in criminal proceedings through a live television link. The judge, in the High 1627 Court or the sheriff court, will be able to decide, having regard to the statutory criteria in the Bill whether the use of a TV link would be desirable. If necessary procedural matters can be regulated by an act of adjournal; for example, the time when the application should be made to the court. If he wished the judge could interview the child.

In its report on the evidence of children the Scottish Law Commission recorded its view that in many cases children are able to give evidence in court by conventional means, and without special techniques, provided they are dealt with in a sensitive manner. The recent memorandum by the Lord Justice General on child witnesses gives most useful guidance to judges regarding how they should exercise their existing discretionary powers to put a child witness at ease by relatively simple measures such as clearing from the courtrcom everyone who is not directly involved in the proceedings. I envisage that there will be relatively few cases where the use of the TV link arrangements will be necessary.

A matter to which we have given careful consideration is whether a child witness should still be required, where giving evidence by TV link, to identify the accused in court by dock identification. Identification is of course a crucial part of a case but it would be somewhat odd still to require dock identification, with the related possible stress for the child witness, if identification can properly be made in some other way which nonetheless preserves fairness to the accused. The clause in the Bill on this matter, Amendment No. 167, provides that evidence of a prior identification, typically at an identification parade, will be admissible. I stress admissible because the sufficiency of that identification evidence remains a matter for the court's consideration in the light of the other evidence adduced and the submissions made to the court.

It would appear from deliberations in another place that there was some confusion over that distinction. It would not be feasible to install the appropriate television equipment in every court in Scotland. Where it is expected that an application for use of TV links is likely to be made and granted the case can either be started in an appropriately equipped court or transferred to such a court. To ensure that that is possible, in sheriff court cases the Bill provides, in Amendment No. 166, for a case to be taken or transferred anywhere within a sheriffdom. Transfer is only possible, however, where the court has granted an application for TV links with a child witness.

My predecessor, the noble and learned Lord, Lord Cameron of Lochbroom, asked the Scottish Law Commission to look at these matters because of considerable discussion, both in Scotland and elsewhere, of the medical and social problems raised by child abuse. It is plain from the commission's discussion paper and the subsequent report that there are differing views on how best to reduce that stress for child witnesses and for potentially vulnerable adult witness, particularly in criminal proceedings but also in civil proceedings.

1628 The commission made a wide range of recommendations. For the present we decided not to proceed with the commission's other recommendations, in particular with the suggested pre-trial video recorded deposition procedure, until we have more experience of the benefits flowing from the Lord Justice General's memorandum of guidance and from the use, where appropriate, of live TV links. The operation of the memorandum and of the live TV links arrangement will be carefully monitored and considered along with the results of recent research into child witnesses.

The fourth of the new clauses provides necessary definitions. In particular, a child is defined as a person under the age of 16. Amendment No. 168A proposes that the age should be 12. I do not consider that lower limit to be necessary or appropriate. I should emphasise that the new arrangement is discretionary and I certainly envisage that as the child gets closer to the age of 16, given the criteria set out in the new clauses, there would be far less likelihood of resort being had to the live television link rather than the child being in court. I should not like to see the upper age limit removed or fixed overall at 12. There may be circumstances where, for example, a young girl who has been seriously sexually abused between the ages of 12 and 16 could be in the most vulnerable of states. If that distress or stress to her could be avoided by resort to the provision, without unfairness being caused to the accused, even to that age I should consider it appropriate.

Moved, That the House do agree with the Commons in their Amendment No. 165.—(Lord Fraser of Carmyllie.)