HL Deb 23 May 1994 vol 555 cc541-600

House again in Committee.

Clause 34 [Effect of accused's failure or refusal to account for objects, substances or marks]:

Earl Ferrers moved Amendment No. 27:

Page 23, line 33, at end insert: ("(aa) a judge, in deciding whether to grant an application made by the accused under—

  1. (i) section 6 of the Criminal Justice Act 1987 (application for dismissal of charge of serious fraud in respect of which notice of transfer has been given under section 4 of that Act); or
  2. (ii) paragraph 5 of Schedule 6 to the Criminal Justice Act 1991 (application for dismissal of charge of violent or sexual offence involving child in respect of which notice of transfer has been given under section 53 of that Act);").

The noble Earl said: In moving Amendment No. 27 I wish to speak also to Amendments Nos. 29, 31, 174 and 175. The amendments are essentially technical. They extend the scope of Clauses 34 and 35 as regards proceedings to transfer cases from the magistrates' courts to the Crown Court in order to bring them into line with Clause 32. I beg to move.

[Amendment No. 27A not moved.]

Earl Ferrers moved Amendment No. 28:

Page 23, line 43, at end insert: ("( ) This section applies in relation to officers of customs and excise as it applies in relation to constables.").

The noble Earl said: In moving Amendment No. 28 I shall speak also to Amendments Nos. 30, 174A and 175A.

Amendments Nos. 28 and 30 would extend Clauses 34 and 35 to include questioning by customs officers. Following the example of the Criminal Evidence (Northern Ireland) Order 1988 the clauses have hitherto encompassed questioning only by constables. Customs officers carry out their own investigations, under the safeguards provided by the Police and Criminal Evidence Act. They are already included within the scope of Clause 32. We think that it is logical that inferences should also be allowed to be drawn from silence under questioning by customs officers in the circumstances which are set out in Clauses 34 and 35.

The amendments to Schedule 10 would make the same amendments to the corresponding legislation in Northern Ireland. I beg to move.

Clause 34, as amended, agreed to.

Clause 35 [Effect of accused's failure or refusal to account for presence at a particular place]:

Earl Ferrers moved Amendment No. 29:

Page 24, line 24, at end insert: ("(aa) a judge, in deciding whether to grant an application made by the accused under—

  1. (i) section 6 of the Criminal Justice Act 1987 (application for dismissal of charge of serious fraud in respect of which notice of transfer has been given under section 4 of that Act); or
  2. (ii) paragraph 5 of Schedule 6 to the Criminal Justice Act 1991 (application for dismissal of charge of 542 violent or sexual offence involving child in respect of which notice of transfer has been given under section 53 of that Act);").

The noble Earl said: I spoke to this amendment with Amendment No. 27. I beg to move.

[Amendment No. 29A not moved.]

Earl Ferrers moved Amendment No. 30:

Page 24, line 32, at end insert: ("( ) This section applies in relation to officers of customs and excise as it applies in relation to constables.").

The noble Earl said: I spoke to the amendment with Amendment No. 28. I beg to move.

Clause 35, as amended, agreed to.

Clause 36 [Interpretation and savings for sections 32, 33, 34 and 35]:

Earl Ferrers moved Amendment No. 31:

Page 25, line 11, after ("32(2) (b)") insert (", 34(2) (aa) and 35(2) (aa)").

The noble Earl said: The amendment has been spoken to with Amendment No. 27. I beg to move.

Clause 36, as amended, agreed to.

Clauses 37 and 38 agreed to.

8.15 p.m.

Lord Ashley of Stoke moved Amendment No. 32:

After Clause 38, insert the following new clause: ("Amendment to section 10 of the Juries Act 1974.For section 10 of the Juries Act 1974, (Discharge of summonses in case of doubt as to capacity to act effectively as a juror) there shall be substituted— Eligibility of people with disabilities to serve as jurors.

  1. "10.—(1) People with disabilities shall be eligible to act as jurors unless in the opinion of the judge there are reasonable circumstances that would mean a person could not effectively discharge their duties as a juror.
  2. (2) Where there is doubt as to a person's capacity to act effectively as a juror, the person may be brought before the judge, who shall determine whether or not he should act as a juror and, if not, shall discharge the summons; and for this purpose "the judge" means any judge of the High Court or any Circuit judge or Recorder."").

The noble Lord said: In moving Amendment No. 32, I speak also to Amendments Nos. 41 and 42.

Amendment No. 32 provides that disabled people shall be eligible to act as jurors unless the judge thinks that there are reasonable circumstances why they should not. Disabled people feel strongly on this issue because they resent unnecessary exclusion from a crucial aspect of our society.

No one knows the full extent of this exclusion. However, we know that there has never ever been a deaf juror; and there are examples of disabled people being refused jury service. I refer to the woman from Norfolk who wrote to me complaining that she was barred because there was no access for her wheelchair. It is inconceivable that human beings can be excluded from jury service for such reasons, but those are the facts.

The amendment is important not because it changes procedure or the role of the judge, but because it changes emphasis. Emphasis in this difficult field of prejudice against disability is important. The amendment changes the emphasis. A disabled person is assumed to be capable rather than incapable of being a good juror.

With regard to reasonable circumstances, the failure to provide such facilities as access ramps or induction loops cannot be regarded as reasonable. Yet the Lord Chancellor's Department's Guide to Facilities for Disabled People in the Crown Courts and County Courts indicates that in no less than 44 per cent. of our courts the main entrance is not accessible to disabled people. In other words, disabled people are excluded as clearly and categorically as though there were a great mountain in front of them.

Nor is it reasonable to tolerate the ignorance and misunderstanding which occurred in the case of Mrs. Elaine Heath, a deaf lady who was rejected as a juror. In that case, the lady had the provision of computer aided transcription—the kind of system that I use in this House. When she went to the court, the judge said, "I'm sorry, you cannot be a juror. You are deaf'. That simply does not make sense. It shows a degree of prejudice and indifference on the part of judges which is regrettable and deplorable. That has been the case in cities such as Edinburgh, London, Glasgow, Cardiff, Liverpool and others. Deaf people have expressed a wish to carry out their duty as jurors and they have been denied the opportunity.

Sympathetic excuses have been offered as objections. It has been claimed that interpreters would be a distraction to the courts. But in fact as soon as the novelty wears off, people quickly become used to having a sign language interpreter. We have seen such interpreters at the party conferences. Only deaf people are now aware of sign language interpreters. Other people are almost oblivious to them once the novelty has worn off.

Some people say that a deaf person would not be able to judge the demeanour of a defendant or witness, or pick up any emphasis or hesitation. But the interpreter would be positioned close to the witness box so that a deaf person could watch both the interpreter and the speaker at the same time. Deaf people acquire the skill of having eyes all over the place, and are able to observe things far more assiduously and perceptively than most people.

Many excuses are offered. I have no time to deal with them. They are preposterous and rather pathetic excuses for excluding deaf people from jury service. But since 1979 many states in the United States have had deaf jurors. Evidence shows that deaf and other disabled people can be as effective as jurors as able-bodied people. I hope that the Committee will agree to the amendment.

Perhaps I may speak briefly to Amendment No. 41. It proposes that the Government shall publish a code of practice for deaf and hard of hearing people in court or custody who require communication support. I believe that the time has come to ensure equal rights of access to judicial proceedings for all deaf and hard of hearing people. I believe that the provision is a step in the right direction. It is not a major step but a step. That is the view of some of the judiciary. In the course of a judicial review from a magistrates' court hearing involving a deaf defendant at which there was no sign language interpreter, Lord Justice Watkins said: Justices who go on with the hearing of a charge against a defendant who is handicapped by deafness as this one was and is, take a very considerable risk of the hearing which they conduct being described as contrary to natural justice".

I believe that Lord Justice Watkins had a strong case. I hope that his words will be borne in mind. The present position is undoubtedly unsatisfactory. Deaf and hard of hearing people who have to attend court as defendants or witnesses must have communication support. It may be just an inductive loop or a sign language interpreter or a lip-speaker or, for the deaf-blind person a deaf-blind communicator. But whatever it is, that support should be provided.

Less than a few hours ago the Committee agreed the provision about the right of silence. Under that provision a refusal to answer could become incriminating. Yet a profoundly deaf person communicating only through sign language could well be unable, but not unwilling, to answer because he simply does not follow the questions. That is why I believe that communication support should be provided.

The Home Office is being very reactionary. It believes that it should be left to the discretion of the courts to decide whether a person understood his position in law. That is preposterous. What is required is the implementation of the recommendation of the Royal Commission on Criminal Justice, and in particular the recommendation that the courts should take responsibility for providing interpreters. An interpreter is there to interpret for the court as well as for the deaf person. These people should be properly trained, properly qualified and properly provided by the Government.

I wish to say a final brief word on Amendment No. 42. It provides that the Government should publish a code of practice for criminal courts to meet the needs of disabled court users. I wish to add my appreciation to the noble and learned Lord the Lord Chancellor for his generous help and co-operation in making provision for disabled people during the passage of the Police and Magistrates' Courts Bill. I also pay tribute to the fine work of the noble Lord, Lord Swinfen. Between them, he and the noble and learned Lord advanced the cause of disabled people during the course of that Bill.

Amendment No. 42 is a further step, prompted by the fact that codes of practice have proved to be helpful in providing for the needs of disabled people. The code of practice could include awareness training for courtroom staff; the need to provide information about access facilities both beforehand and within buildings, car parking areas and other places; installations and adaptations to buildings to maximise physical access —for example, with ramps, lifts and enough room for wheelchairs to move in and around the courtrooms. There should be simple things like doorways wide enough to permit wheelchair access and even simpler things like the heights of the counters and strength of the door closures as well as the provision of accessible information.

Those are modest steps which could be taken, but they are vital because without them disabled people are excluded from justice. In some cases, it can lead to injustice. No one in this Chamber would tolerate injustice willingly, but it is happening to disabled people. I would greatly appreciate consideration by the Committee, particularly Ministers, of the amendments. I beg to move.

Lord Swinfen

I wonder whether my noble and learned friend the Lord Advocate could advise the Committee on whether he is happy to deal with Amendments Nos. 41 and 42 at the same time as Amendment No. 32. I was taken somewhat by surprise because they are grouped well down the list. I am happy to deal with them now, even though I do not have my notes. My noble and learned friend nods and therefore he is happy to deal with them. Therefore, I shall speak now and hold my peace later in the evening.

I am happy to support the noble Lord, Lord Ashley, on Amendment No. 32. We all remember that not so long ago my noble friend Lord Ferrers was disabled, he moved around the House on crutches. I am glad that he later transferred to two sticks, then one stick and he is now leaping around like a spring lamb. During that period of disability, no one would have said that he was incapable of acting as a juror.

The amendment of the noble Lord, Lord Ashley, mentions disabilities in general; it speaks not only of those who suffer from a hearing impairment. The mere fact that parts of one's body do not work properly does not mean that the observation and mind do not work extremely well. Sometimes because of a disability the mental part of the body works a great deal better. Therefore, that is a good reason why people with disabilities should be allowed to become jurors.

The amendment is framed in such a way that people with mental or learning disabilities could be excluded from jury service by the court. I am sure that there are occasions when that would arise. It may be that my noble and learned friend could consider all three amendments. He could possibly meet the noble Lord, Lord Ashley, and me between now and Report stage and discuss them. I added my name to Amendment No. 41 in the name of the noble Lord, Lord Ashley, concerning assistance in courts for the deaf or the hard of hearing. I am particularly pleased with paragraph (b) concerning someone with that affliction being taken into police custody. It is important. I suffer in an extremely mild way from a hearing disability, I wear a hearing aid but most of the time I can get along perfectly well. However, if someone who is profoundly deaf is taken into police custody and is dealt with by policemen who do not understand the situation, who do not know sign language, it is important that that person receives help. After all, for profoundly deaf people that is their first and probably their only language.

Amendment No. 42 is in my name. My noble and learned friend the Lord Chancellor was kind enough during the Police and Magistrates' Courts Bill (which is now an Act), after I had moved an amendment at the Committee stage, to arrange for an amendment to be drafted for me for Report stage. It was to mean that magistrates' courts committees would have to take proper consideration of people with disabilities who used their courts in all capacities. That is, as magistrates, defendants, lawyers, friends and just as visitors. The same should be the case with county courts and above.

A code of practice was put into the Railways Act to ensure that railway authorities take into account, the needs of disabled people when undertaking major alterations to railway stations. I feel strongly that there should be no difficulty in that being taken into account in the Bill for court users in general, in our county and Crown Courts. I would be grateful if my noble and learned friend could assure the Committee that he would be prepared to meet me and the noble Lord, Lord Ashley, between now and Report stage. I strongly suspect that my amendment is not particularly well drafted, and I wish to make certain that it is workable. Crown Courts are sometimes listed buildings and therefore we cannot make certain alterations to them. I understand that; but it is important that wherever possible, the needs of disabled people—no matter what their reason for going to court—are taken into account.

Lord Airedale

I believe that the noble Earl, Lord Ferrers, would not fit easily into a jury box, even if he were not disabled.

Lord Archer of Sand well

In the next debate we shall discuss who should be excused from jury service. In relation to Amendment No. 32, it is equally important that disabled people should have the right to jury service; recognised if they wish to serve. It is part of being a citizen, and rejection can sometimes be an affront to someone's dignity.

Clearly, no one suggests that a person who is unable: to hear what is going on should be included on a jury. The Morris committee considered the matter as long ago as 1965 and said that no one should be eligible to serve: if they were unable to hear the evidence. However, that was 1965. Since then a great deal of technology has: been made available: interpretive sciences are now available and many people can now participate who probably at that time could not. The problem is that the; courts simply do not know what is available.

That is not the only issue on which we have found that in the courts we need to be educated. Recently, the: Council on Tribunals sought to produce a code of conduct relating to the disabled which we have now made available to all the tribunals in the country. In the course of that, we consulted many of the organisations representing the disabled. I thought I knew something about the subject. Until we produced the code, I was amazed at how little I knew and how insensitive I had been on occasions. One of the things we discovered in relation to access was that sometimes if one asks, one; receives the reply, "Oh yes, there's a lavatory available for the disabled, but you've got to find the person who has the key". So one has to go all over the building before the key can be made available. Sometimes a disabled person appearing before a tribunal is already in a state bordering on a nervous breakdown before the; hearing begins.

We have dealt with judicial ignorance in relation to problems of the ethnic minorities. Recently the Judicial Studies Board produced a code of conduct. I must say that the initial reaction of many of the judges whom I knew was, "We don't need this. We aren't prejudiced anyway. We don't do anything wrong". They discovered that they were learning something which they thought they had known already. I would certainly like to pay tribute to Sir Henry Brooke, who has placed this issue before a number of judicial training seminars and has greatly improved the way in which we treat members of ethnic minorities.

The same kind of approach would help in relation to the disabled. It would be possible in some courts and in some tribunals; and it would not be necessary in every court. In a large judicial complex there should be one court which is equipped with the technology that would assist those who are deaf. It would not be an inordinate expense, where necessary, to ensure that there is an interpreter for the deaf. If it were made known to the judiciary and to the jury officers how those who are deaf can now live normal lives, I believe that we would go a very long way towards enabling them to participate, as my noble friend said, in our system of justice.

8.30 p.m.

Lord Renton

As the noble Lord, Lord Ashley of Stoke, well knows, I have been very happy and proud to support him from time to time in both Houses of Parliament when he has been trying to help the disabled. The noble Lord has done a service by tabling his amendment. It is a very moderately phrased amendment. It gives scope for decision by the judge which would probably be realistic and just. But what we have to consider is where the priority lies. Is our first duty to ensure justice for the accused, or is it justice for a potentially disabled juror? On that, I must say that I think that justice for the accused and to the system by which the accused is tried must come first.

With that in mind, I would say that, for example, blind people really cannot act as jurors. So often in cases the demeanour of the accused—not only the words he utters and how he utters them, but the expressions on his face—has to be studied in order to find out as best one can whether he is telling the truth. A blind person therefore cannot do that.

What about mentally handicapped people? The noble Lord knows my interest. I think that if even a slightly mentally handicapped person were served with a jury summons, as soon as it was discovered that person should be exempt from jury service. That is my personal opinion.

Then we have the more difficult case of the illiterate person. In so many cases in courts these days there are documents. I am not talking of cases of forgery. There are all kinds of cases in which documents automatically have to be looked at. Sometimes even a policeman's notebook has to be studied. An entirely illiterate person cannot do justice to the case, and therefore should not be compelled, in my opinion, to serve as a juror.

I am sure that Members of the Committee would agree that all jurors should be mentally and emotionally stable. A person who is suffering from a nervous breakdown, however temporary, or a person who is suffering a tremendous emotional strain, perhaps due to the break-up of a marriage, or someone who is in the most acute pain following an accident—people like that would not necessarily make the best jurors. But having said that, the noble Lord, Lord Ashley of Stoke, has put forward a case which deserves very serious attention. I am sure that my noble and learned friend the Lord Advocate has given it that attention. I shall be interested to hear what he has to say.

Perhaps I may briefly turn to Amendment No. 42 in the name of my noble friend Lord Swinfen. I was full of admiration at his daring in suggesting that it should be considered with Amendment No. 32. Quite frankly, they do raise somewhat different—

Lord Swinfen

If my noble friend will forgive me, I did not suggest it. I said when I spoke that I was rather surprised.

Lord Renton

I am so sorry; I misheard my noble friend. If we are considering that amendment, perhaps I may briefly refer to it. It covers a very wide field and overlaps partly with Amendment No. 32 in the name of the noble Lord, Lord Ashley. There is the question, for example, of jurors in wheelchairs. You may have a frightfully shrewd juror who is, alas, confined to a wheelchair. On the face of it, in the interests of justice it would be an awful pity if he could not sit. He may even be the best person available to be the foreman of the jury. But jury boxes are not equipped to take wheelchairs. There is a real problem.

Perhaps I may draw on my own rather varied experience of the law and tell the Committee that I remember a case in a rather small quarter sessions court many years ago where an accused person had had an accident and was on a stretcher. I do not know why. He may have broken his thigh, or something like that. He had to be on a stretcher. Of course, normally nobody would dream of trying such a person but he insisted on being tried and getting his case over. The court acceded to his request. He could not be fitted into the dock on a stretcher, and there was no seat or bench near the dock where he could be put. So he was taken up to part of the public gallery. He lay there on his stretcher.

I was one of the counsel in the case. One could just see that there was somebody up there lying on a stretcher. We all thought it really rather embarrassing that this man insisted on being tried. When he was arraigned by the clerk of the court, the clerk of the court used the precautionary words: "Prisoner at the bar, can you hear me?" The answer came back: "I can hear you, but I can't see you". That created the most extraordinary dilemma for the court, for counsel and for the jury. But because the accused wanted the case to go forward we just carried on with it. I am sorry to have to say (I was not defending him) that he was found guilty, and rightly so. We do get very unusual circumstances, but very rarely.

Coming back to the amendment of the noble Lord, Lord Ashley, I would have thought that generally a judge will have no difficulty in deciding, given the power that the amendment gives him, when it is in the interests of the accused, in the interests of justice and the right of the person concerned, for him to serve on the jury and when it will not be so. I do not think that in practice it will create difficulties. I tend to support the noble Lord's amendment, but I should be interested to hear what my noble and learned friend the Lord Advocate has to say.

Lord Ashley of Stoke

Perhaps I may make a brief debating response to the noble Lord. Let me begin by acknowledging that he has rendered great service to disabled people. I respect what he says and what he does, whatever he says—and in this case I disagree with him. I congratulate him on the work that he has done.

However, the noble Lord put forward a very false antithesis. He asked the question: do we want to give justice to the accused or to the disabled person? That is a bogus question. It begs the question. It infers that by having a disabled person on a jury the accused suffers an injustice. But that is not so. The very fact that the noble Lord used the poor analogy of a blind person being unable to see the face of the accused shows how weak is his case. Any self-respecting crook will put on a false face if he is pleading a false case. If he should not smile, he will smile; if he should look glum, he will not look glum; and if he should look cheerful, he will not look cheerful. He will give the opposite expression to that of the truth. He will try to mislead by his expression. A blind person is better able to judge by listening to the voice only and not being misled by the false expression of the accused.

In the case of a deaf person, some people say—but not the noble Lord, Lord Renton, although I am sure that he would if he had time—that a deaf person cannot catch the inflexion of the voice. The inflexion of the voice is irrelevant because the English language cannot be twisted—although perhaps one could say that that is attempted by some lawyers. It means what it says. In a court of law, the deaf person, following the language by use of a hearing aid, palantype or sign language, and regardless of inflexion, will analyse the language and will not be misled. If there is a crook in the court, he cannot mislead a deaf person as easily as he might mislead a hearing person.

On all those counts the noble Lord, Lord Renton, offers the reverse of the truth. He is completely wrong. Not only does he have the matter wrong in those respects, but also in what he said about the judge. I specifically said that the powers of the judge are not changed. Under this amendment it is simply the emphasis of the Act that is changed, putting the emphasis on the ability of the disabled person to be a juror. I specifically mentioned that the judge would still determine the matter and be the person who says, "We cannot have this disabled person for good reasons". We still leave the matter to the discretion of the judge.

Therefore, I hope that the Committee will not be misled by the noble Lord, Lord Renton, but instead will support the amendment.

The Lord Advocate (Lord Rodger of Earlsferry)

The Committee has had a short but interesting debate on this topic. The Government are very sympathetic to what the amendment seeks to achieve. In fact, it is already the Government's policy that people with physical disabilities should be able to serve on juries wherever possible and practicable. Indeed, the Lord Chancellor's guidance to courts at present requires them to do all that they can to assist and facilitate the participation of such jurors.

As no doubt the noble Lord, Lord Ashley, knows, the only concern that the Government had about the proposal was whether or not an amendment in the law would be necessary to achieve the effect that he desires. I accept that the success of the policy—which is already the Government's policy—depends on the kind of factors of which the noble Lord spoke; namely, the need to get across the message to the people in the courts and in particular to the judiciary and so on. We do not feel that the current law represents an obstacle to the policy. The question is whether or not a change in the law, such as that envisaged by the noble Lord, might assist in carrying through the kind of policy that we are pursuing.

We have reached the conclusion that it would be possible to draft the law in a more positive way in order to deal with the participation, as jurors, of people with disabilities. We have concluded that such a change might indeed be a useful signal to the courts and other people who are concerned about the policy which it is desired to achieve. For that reason I am able to say to the noble Lord that we do not oppose the principle which lies behind his amendment.

At this stage I must say that we feel that the; terms of the amendment require to be looked at in more detail. For example, the amendment has removed all reference in an existing text to the need for people to have a sufficient understanding of the English language for them to serve as jurors. No doubt we all agree that that is necessary. I entirely accept the analysis put forward by the noble Lord, Lord Ashley, as to the nature of the dilemma posed by my noble friend, save only—which I am sure he accepts—that there may indeed be cases where a particular juror with a particular kind of disability may not be able to serve. To take an obvious example, if there were a case in which much of the evidence was on video tape, then someone who could not see that video tape would be at a disadvantage which might well make him unacceptable as a juror in that particular case. But, as the noble Lord recognises, the question would always be whether a particular juror with particular disabilities could serve on the particular jury in question.

With the undertaking that the Government will take away the noble Lord's amendment, look at it and come back at Report stage with a proposal, I hope that the noble Lord will feel able to withdraw his amendment.

8.45 p.m.

Lord Renton

Before my noble and learned friend moves on to Amendment No. 42, I wonder if he could say whether the Government, in giving this matter further consideration, will give priority to the interests of the accused and the administration of justice or priority to the sensitivities of disabled people.

Lord Rodger of Earlsferry

I would expect the matter to be left to the judgment of the judge on the case. That is what we envisage. I would expect that the judge would always wish to have only jurors sitting on the case who would be able to try the case fairly —that means fairly in the interests of the public and in the interests of the accused. I accept that that must be the case. But depending on the particular disability, that may not mean, in the particular case, that it prevents that person from trying the case properly.

I turn to Amendment No. 41, which was the first amendment spoken to by my noble friend. As he knows, there is already a code of practice which applies to the police under the Police and Criminal Evidence Act 1984. It stipulates that if a person appears to be deaf or there is doubt about his hearing or speaking ability, he must not be interviewed in the absence of an interpreter unless he agrees in writing to be interviewed without one. That guidance exists and has existed for some years. Further guidance was issued in 1985 and 1991 stressing the need for the police to be alert to potential difficulties in communicating properly and effectively with deaf people and stressing the need to ascertain whether or not an interpreter is needed.

Turning to the position in relation to the courts, Members of the Committee will be aware that a project is presently being run—the Nuffield Interpreter Project —which is wide-ranging and deals not only with the deaf, but also with interpreters for those unable to speak English. That project is funded from the Lord Chancellor's Department, the Home Office and the Crown Prosecution Service. We expect a report to be published in the Autumn. At the next meeting of the Nuffield project, consideration will be given to including sign language interpreters in a register of interpreters who are qualified for use within the criminal justice system. That is obviously an important matter and I hope that it will be a step forward in this area. The project liaises with the Council for the Advancement of Communication with Deaf People, which already has available a directory of sign language interpreters and is able to supply names of interpreters when requested.

That has been found to work well in practice. It is of course the case that hitherto the courts were not fitted with the kinds of equipment able to help deaf people in understanding what goes on in court. In particular, they have not been fitted with infra-red systems. Steps are being taken to improve that situation and such equipment has already been installed in a number of courts in different parts of the country. As the projects of refurbishment go ahead, we expect to install that system in other courts.

It has not been thought proper to use the induction loop system, to which the noble Lord, Lord Ashley, referred, because that is a system which allows the transmission to be picked up outside and therefore the transmission could be picked up outside the court room. As the noble Lord will understand, that may have implications in ensuring a fair trial if witnesses and so forth hear the evidence outside. For that reason courts prefer to adopt the infra-red system. As that system is increasingly installed, we hope that it will lead to improvements.

On the question more generally of disabled people and the courts, much has been done in recent years to improve the situation with the introduction of the Justice Charter in Scotland and the Courts Charter in England and Wales. Standards exist which require new court houses to comply with building regulations and to provide facilities for disabled people. In fact, there are jury boxes in some of our courts specifically designed to allow people in wheelchairs to sit as members of a jury. As has been said, it is right that where possible people whose only problem is that they are in a wheelchair, should be able to serve as jurors. I do not close my eyes to the fact that some of our courts, because of their existing design, make that impossible at present. But we hope that, as refurbishment and building goes ahead, the number of courts where it is possible will increase.

The Lord Chancellor's Department produced a digest of facilities for disabled people in the Crown Courts. As the noble Lord, Lord Ashley, is aware, that is circulated to bodies which represent people with disabilities of various kinds. By consulting the digest they are able to see what facilities are available in a specific court and what they need to do to alert people of their needs.

From the Government's point of view it is a little more difficult, as the Committee will appreciate, to provide change in magistrates' courts. They are under the control of local magistrates' courts committees and they are in local government accommodation. Therefore the responsibility for the facilities essentially rests with the local authorities. Detailed guidance has been made available for local authorities and for magistrates' courts committees on the provision of appropriate facilities for the disabled in all new magistrates' courts and also where improvements are being proposed. Applications for funds to improve facilities for the benefit of disabled people are dealt with as expeditiously and as sympathetically as possible.

My noble and learned friend the Lord Chancellor would welcome the opportunity to consider a code of conduct being drawn up by the Access Committee when it is available. Guidance and standards already exist. They were issued by the Home Office in 1991 to ensure that facilities for the disabled are properly and thoroughly considered in the magistrates' courts. The needs of disabled court users are more widely recognised now than they once were.

Having said that, if my noble friend wishes to meet me between now and Report, I shall be happy to meet him and the noble Lord, Lord Ashley, to consider whether anything further can be done. However, in the light of what I have been able to say at this stage, I hope that noble Lords will feel able to withdraw their amendments.

Lord Swinfen

I am much encouraged by what my noble and learned friend said. As a result of his offer to meet me and the noble Lord, Lord Ashley, I shall not be moving Amendment No. 42 when the Committee reaches it.

Lord Ashley of Stoke

I have a few differences with the noble and learned Lord. But I do not intend to delay the Committee now. I simply want to say that I warmly appreciate the sensitive, understanding and helpful way in which he dealt with my amendment and I beg leave to withdraw Amendment No. 32.

Amendment, by leave, withdrawn.

Lord Archer of Sandwell moved Amendment No. 33:

After Clause 38, insert the following new clause: ("Jury service: Excusal on religious grounds . In section 9 of the Juries Act 1974 (providing among other matters for discretionary excusal from jury service)—

  1. (a) after the word "may" in line 4 of subsection (2) there shall be inserted— "subject to subsection (2A) below"; and
  2. (b) after subsection (2) there shall be inserted the following subsection—

(2A) If any person summoned under this Act to serve on a jury is a practising member of a religious society or order and applies for excusal on the grounds that such service would be incompatible with his tenets or beliefs, then he shall be entitled to be excused provided that—

  1. (a) the appropriate officer is satisfied that such grounds are genuine; or
  2. (b) if (a) does not apply, the judge on whose authority the summons was issued is so satisfied." ").

The noble and learned Lord said: The noble Lord, Lord Ashbourne, who was kind enough to add his name to this amendment, asked me to say that his absence today is due purely to the fact that he is indisposed. The purpose of Amendment No. 33 is to provide that anyone for whom jury service is incompatible with a genuinely held religious belief, should be excused. It is not an academic issue. There are those who sincerely believe that they are precluded by scriptural authority from serving on juries, particularly, but not entirely, the Exclusive Brethren.

I say at the outset that I do not share that view. That is not the issue. They are people whose commitment to the obligations of citizenship cannot normally be faulted. They pay their taxes; they abide by the law; they help their neighbours. But in this respect they find that their civic obligations are in conflict with their religious faith.

This country has long recognised the right of conscientious objection to what would otherwise be a duty, and that is a tradition in which most of us take a pride. I do not believe it should or can be recognised in every context in which it arises. There are those who object on grounds of conscience to paying that proportion of their taxes which is destined to be used on nuclear weapons. I do not believe it would be practical to recognise that instance of conscientious objection.

In deciding whether a conscientious objections to a civic duty should be recognised, we should have regard to two factors. The first is the mischief which would result if the right were recognised. If it appeared that if the services of those who hold this belief were excused it would be impossible to empanel a jury and so would bring the processes of our criminal procedure to a standstill, I accept that we might need to think again. If recognising this right were likely to encourage vast numbers of potential jurors to seek excusal from jury service, I concede that there might be a difficulty. But that is simply not the case. Normally, those summoned for jury service answer the obligation readily and, in most cases, cheerfully. The jurors with whom I have occasion to work when sitting as a recorder devote great care and attention to their task, and usually appear to find it interesting. If the right of conscientious objection were to be recognised, it would create no problem for the administration of our criminal justice system.

The second criterion which I believe should be taken into account in deciding whether to recognise a specific right of conscientious objection is the degree of difficulty in testing whether the belief is a genuine one. In this instance, I see no difficulty. That is why the exemption in the amendment is confined to a member of a religious society or order. It is conceptually possible, of course, that an atheist might hold some genuinely conscientious objection to jury service; and if that were to arise, we might need to address it. But I know of no instance where it has arisen in practice, and we can confine ourselves to the real problem. And it is a simple matter, if someone claims to be a member of a religious body which holds this belief, to call evidence; normally, I imagine, in the form of a letter from a minister or other official of the church. He or she would certify two things; first, that the objector is a member of the church, regularly attends church services, takes communion and participates in its other activities; and, secondly, that it is a belief of that faith that members may not undertake the activity from which the excusal is sought.

That is a simple exercise and it creates no problem for those who have to decide whether to grant the excusal. So by both these criteria, no catastrophe would overtake us if we were to recognise the problem of conscience. Indeed, I believe that there is a very substantial advantage to the administration of justice in recognising the right, quite separately from the argument based on our tradition of tolerance. Every judge with experience in criminal courts knows that the interests of justice are not served by including in a jury a reluctant juror. A juror who does not wish to serve, who resents being present and who believes that he is precluded by his conscience from discussing the case with the other jurors, cannot make a proper contribution to the processes of justice. If we are balancing the advantages and disadvantages of recognising this right of objection, we need to throw into the scale the requirements of justice itself for those who are being tried.

This problem was considered as long ago as 1965 by the Morris Committee. In paragraph 153 of its report, the committee said: 'We recognise that there are people whose religious scruples would make it genuinely distressing for them to serve on a jury, but we cannot think that excusal as of right would be an appropriate way of dealing with this problem. In our view, such persons should apply for excusal in the normal way, and we have no doubt that summoning officers and courts will deal with their applications sympathetically".

That message was understood by the courts, and for many years there was very little problem. Section 9 of the Juries Act leaves the position to the discretion of the "appropriate officer" if he is shown there is a good reason for the excusal. There is an appeal from the appropriate officer to the judge. In 1988 the then Lord Chief Justice issued a practice direction encouraging courts to respond sympathetically to applications.

If they had always responded, I should not be troubling your Lordships with this amendment tonight. But, alas, that has not always been the case. In June 1988, at the Report stage of the then Criminal Justice Bill, I moved in another place a new clause to the same effect as this present one. It was defeated by 209 votes to 205. The argument of the Government on that occasion was that which had found favour with the Morris Committee—we do not need to make specific legislative provision: we can rely on the common sense and sympathy of the judiciary. I have no doubt that in the large majority of instances that is true. Unhappily, it is not universally true in 100 per cent. of cases. There is a substantial number of cases where objectors have found that their application was not received sympathetically. The Royal Commission chaired by the noble Viscount, Lord Runciman, heard evidence on the question, and in paragraph 57 said: Where practising members of a religious sect or order find jury service to be incompatible with their tenets or beliefs, that shall entitle them to be excused jury service, and we recommend accordingly".

I stress the word "entitle". This amendment seeks to implement that recommendation, and indeed it follows that wording.

On 16th December 1993 I tabled a Question asking for the Government's response to that recommendation. The noble Earl, Lord Ferrers, replied that the Government had received only three representations on the matter. It transpired on inquiry that a substantial number of those who had encountered difficulties since the report had abstained from writing because they did not appreciate that the Government implement the recommendation of a Royal Commission which has heard evidence on the subject only if they receive further representations. But I am told that since that exchange at least 45 people have written to the noble Earl recounting their experiences.

I have been shown a copy of a letter written by the Minister of State, Mr. Maclean, to Sir Teddy Taylor, who tabled a new clause to this Bill in another place. The letter is dated 11th May. It says that the Government support the principle that those with a genuine conscientious objection to jury service should be excused, and that the Government accept the evidence that their attempts to be excused have been unnecessarily difficult and stressful. The letter adds that the Government would be ready to consider administra-tive steps to deal with the problem—which, as we know, have not worked. Having pursued the path of logic to the front door, they then turn aside and decline to enter. The Government say that they have not reached a conclusion on the commission's recommendation.

There is scriptural guidance to which I sometimes turn. It concerns a certain importunate widow and I suspect that Robert Bruce had her in mind when he was contemplating the spider. Perhaps on this occasion the Government may take the final step. I beg to move.

Lord Simon of Glaisdale

I support this amendment which has been moved so ably, thoughtfully and moderately by the noble and learned Lord. I have been asked to speak on it by members of the religious society now known as Exclusive Brethren who were formerly known as Plymouth Brethren. The Committee will recollect that that body inspired one of the masterpieces of English literature, Father and Son, written by a former Librarian of your Lordships' House, Edmund Gosse.

I first came across members of that society after a debate in your Lordships' House on matrimonial law. They came from some distance away in Yorkshire to seek an interview. It was quite apparent from meeting them that they were thoroughly good, honest people sincerely shaping their lives by scriptural authority. It is also quite plain that that authority enjoins them not to take the oath of judgment as jurymen. As the noble and learned Lord has just said, that alone should make us hesitate, because reluctant jurymen are not good jurymen.

But there is much more to it. They are people with a conscientious objection and unless there is some very strong reason to the contrary, that objection should be met. As a pupil of the late Lord Morris of Borth-y-Gest, I am naturally deeply influenced by the report of the Morris Committee. But, as the noble and learned Lord has just shown, administrative arrangements are not now sufficient. In addition to them, my noble friend Lord Runciman and his Royal Commission, having taken extensive evidence and speaking with great authority, have recommended that there should now be statutory provision for the consciences of these people. Under those circumstances I very much hope that the noble and learned Lord the Lord Advocate will give a favourable reply to the amendment which has been moved.

Viscount Brentford

It seems to me that we are a nation which is extremely tolerant and supportive of other people's religious views. If the law as it stands is causing hardship to people who, for sound biblical reasons, are in difficulties because of the varying ways in which their applications are being treated, we should enshrine this right in legislation.

Perhaps I may ask two questions. First, we have talked about the Exclusive Brethren, but are there other categories of people who would benefit from this change and are there any by whom this change in the law could be abused? The second question is this: I am not quite clear what are the problems resulting from the present position and I should like to know whether, when applications to be excused jury service are turned down, that means that those people are reluctant jurors. Is that infringing the system of justice at the moment? While not in any way wanting to avoid easing the consciences of such people, I wonder whether those points can be amplified so that we can know what is currently happening that is to the detriment of justice.

Lord Airedale

Christians might claim exemption under the doctrine: Judge not, that ye be not judged". That would create a problem.

Lord Hylton

I am probably known as being sympathetic to small minorities and religious points of view. However, I am not quite clear, first, as to why those who object to taking an oath should not be allowed to affirm. After all, one can affirm (if one objects to oaths) in both Houses of Parliament. Secondly—

Lord Simon of Glaisdale

If my noble friend will allow me, as I understand it, it is less the oath than the judgment that is contrary to conscience.

Lord Hylton

I am much obliged to my noble and learned friend. I was just coming to that very point because—

Lord Archer of Sandwell

I wonder whether I can assist. In fact, it is the scripture relating to taking counsel with unbelievers which is the stumbling block.

Lord Hylton

I think that I am prepared to allow that case, but, with regard to juries, I do not think that I am prepared to allow the point that has already been raised about sitting in judgment. Surely the function of a jury is to decide, ascertain and present the facts of what has happened. Members of a jury are not required to pass judgment on their neighbour, brother or anyone else.

9.15 p.m.

Lord Monkswell

I must take issue with the previous speaker to some extent because, as I understand it, jury service is a process of judgment. The jury has to make a judgment as to the innocence or guilt of the person charged.

While I support my noble and learned friend in his amendment, I wonder whether I may elicit a little more information from him. First, why should this be a particular problem now? While I recognise that it has been a problem for some time, I wonder whether the changes in judicial practice over the years have made things worse. My noble and learned friend talked about judges allowing jurors to be exempt from service. Presumably another avenue that allowed jurors not to serve was the defence challenge to a jury person sitting. That would be another route for exemption. The curtailment of that right or facility over recent years may have conspired to make the problem worse.

My other question relates to the position of a person who is called to serve as a reluctant jury person. Presumably the only avenue open to that person so that he or she can abide by their religious convictions is not to make a judgment—effectively, to be neutral and not to come down on one side or the other. I wonder whether the result of that will have any effect either in terms of a mistrial or miscarriage of justice with regard to the jury's final verdict. I am thinking of cases where it might be a requirement to have a unanimous verdict —I am not a legal expert so I do not know—but obviously if one jury person is not prepared to make a judgment the result cannot be unanimous almost by definition. I should be grateful for some assistance.

Lord Archer of Sandwell

I am most grateful to my noble friend. The problem is that such jurors feel themselves precluded from discussing the case with the other jurors, but the whole process of jury trial involves the jurors discussing the case together. When they have been compelled to serve on a jury, objectors have sometimes wanted to give a verdict separate from that of the other jurors when they return to court, but that is not the way in which our jury system works.

Lord Rodger of Earlsferry

Again, this amendment has raised an interesting topic. The Government are sympathetic to the purpose behind the noble and learned Lord's amendment. As the interesting narrative of the noble and learned Lord showed, this is a matter which the Government have approached with some degree of caution over the years. That is understandable because the Government regard jury service as an important civic duty. Nonetheless, it is recognised that there are some people who, unlike many, are unenthusiastic about serving on a jury and who may try to get out of it by putting forward spurious reasons for not serving. Therefore, it has seemed that there might at least be a risk that the existence of a statutory invitation to seek exemption on these grounds will provoke a number of undeserving claims.

As the noble and learned Lord acknowledged, it is also the case that the courts have the power of excusal, and in 1988 the then Lord Chief Justice issued a practice direction which sought to clarify the situation. It emphasised that the courts should treat sympathetically those who applied for excusal on the grounds to which the noble and learned Lord referred.

Nonetheless, the Government have received representations from a number of religious groups arguing in favour of a specific statutory recognition of the grounds as they would apply to particular societies or groups. The argument in favour is to remove the element of uncertainty and allow the matter to be handled with greater certainty and consistency. The Minister of State at the Home Office recently met a delegation of closed brethren to hear their anxieties about the matter. They were put forward on the basis mentioned by the noble and learned Lord. It is also relevant to note that the matter was the subject of a recommendation by the Royal Commission.

We believe that there is a small number of other groups which might also wish to benefit from this kind of provision. We are thinking, for example, of Jehovah's Witnesses and Christadelphians. There may be others; who would wish to take advantage of it. The possibility of abuse exists; but in this life there are few things which cannot be abused. We cannot always legislate on the basis of doing only things which can never be abused. The assessment is that if the provision is properly drafted, the risk of abuse will be small.

Having considered the matter further, we are satisfied that the anxieties that we have about the provision are not insurmountable. We believe that the type of groups which would have particular objections to jury service on grounds of principle could be readily recognised and that the matter could be dealt with on that basis. On balance, we accept that a specific statutory formulation could provide for swifter and more consistent resolution of the requests for excusal, and that it would not provide unmanageable difficulties for the courts. Therefore, a statutory provision of the kind that the noble Lord argued for would be appropriate.

Nonetheless, the amendment on the Order Paper is technically defective because, for example, it refers to the summons being issued by a judge. We understand that that is the responsibility of my noble and learned friend the Lord Chancellor. We also wish to consider how the amendment should be drafted to reflect the purpose more specifically. In the light of those assurances, perhaps the noble and learned Lord will feel able to withdraw his amendment in the hope that, like Robert the Bruce to whom he referred, on this umpteenth attempt he may at long last achieve success.

Lord Archer of Sandwell

It is a pleasure doing business with the noble and learned Lord. I never claimed that my draftsmanship was beyond faulting, and I should be happy if it were looked at again. I had always believed that under the stony exterior of the Home Office there beat a heart of pure granite. I am delighted to have been proved wrong. I am grateful to Members of the Committee who have participated in the debate. I am grateful to the noble and learned Lord for his offer and I look forward to the next stage of our deliberations on the Bill. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 39 agreed to.

Clause 40 [Transfer for trial instead of committal proceedings]:

Lord Rodger of Earlsferry moved Amendment No. 33A:

Page 26, leave out lines 28 to 37.

The noble and learned Lord said: Amendment No. 33A is the first of a sequence of amendments going up to Amendment No. 33KK. They all deal with technical consequential amendments to the statute book which result from the proposal in Clause 40 to reform the system of committal for trial. For the most part they make specific reference to passages in the statute book where words have to be changed.

Amendment No. 33A removes subsection (4) of Clause 40 which was included as a holding measure while the full search of the statute book was conducted. That having now been done, subsection (4) is no longer necessary. I beg to move.

Lord Airedale

I believe that we are now discussing the six pages of amendments to Schedule 4. If so, perhaps I may ask whether all those government amendments are in response to undertakings given in another place or whether they are an indication that the Bill was not properly thought out when it was presented?

Lord Rodger of Earlsferry

It is an indication of neither. The amendments are not in direct response to undertakings given in another place. However, when the Bill was drafted it was recognised that it would be necessary to look through all the nooks and crannies of the statute book to find the various small references which had to be changed. For that reason subsection (4) was included as a holding provision. It was recognised that further detailed work had to be done. That has now been done and the amendments now before the Committee are the result of that work.

On Question, amendment agreed to.

Clause 40, as amended, agreed to.

Schedule 4 [Transfer for Trial]:

Lord Rodger of Earlsferry moved Amendments Nos. 33B to 33KK:

Page 129, line 45, after ("evidence") insert ("and").

Page 129, line 47, leave out from ("above") to ("shall") in line 48.

Page 132, line 24, leave out ("(6)") and insert ("(7)").

Page 133, line 40, at end insert: (" "the 1948 Act" means the Criminal Justice Act 1948;").

Page 133, line 40, at end insert: (" "the 1955 Act" means the Army Act 1955;").

Page 133, line 40, at end insert: (" "the 1957 Act" means the Naval Discipline Act 1957;").

Page 133, line 43, at end insert: (" "the 1979 Act" means the Customs and Excise Management Act 1979;").

Page 133, line 45, at end insert: (" "the 1983 Act" means the Mental Health Act 1983;").

Page 133, line 45, at end insert: (" "the 1984 Act" means the County Courts Act 1984;").

Page 133, line 46, at end insert: (" "the 1986 Act" means the Agricultural Holdings Act 1986;").

Page 133, line 49, at end insert: ("Children and Young Persons Act 1933 (c. 12.).

. In section 42 of the Children and Young Persons Act 1933 (deposition of child or young person), for subsection (2) (a) there shall be substituted the following paragraph—

"(a) if the deposition relates to an offence in respect of which proceedings have already been trans-ferred to the Crown Court for trial, to the proper officer of the court to which the proceedings have been transferred; and".").

Page 134, line 27, at end insert: ("Criminal Justice Act 1948 (c. 58.)

  1. .—(1) The 1948 Act shall be amended as follows.
  2. (2) In section 27(1) (remand and committal of persons aged 17 to 20), for the words "trial or sentence" there shall be substituted the words "sentence or transfers proceedings against him for trial".
  3. (3) In section 80(1) (interpretation of expressions used in the Act), in the definition of "Court of summary jurisdiction", for the words from "examining" to the end there shall be substituted the words "a magistrates' court proceeding with a view to transfer for trial;".").

Page 134, line 27, at end insert: ("Army Act 1955 (c. 18.)

. In section 187(4) of the 1955 Act (proceedings against persons suspected of illegal absence)—

  1. (a) for the words from "courts of to "justices" there shall be substituted the words "magistrates' courts proceeding with a view to transfer for trial"; and
  2. (b)for the words "so acting" there shall be substituted the words "so proceeding".").

Page 134, line 27, at end insert:

("Air Force Act 1955 (c. 19.)

. In section 187(4) of the Air Force Act 1955 (proceedings against persons suspected of illegal absence)—

  1. (a) for the words from "courts of to "justices" there shall be substituted the words "magistrates' courts proceeding with a view to transfer for trial"; and
  2. (b) for the words "so acting" there shall be substituted the words "so proceeding".").

Page 134, line 27, at end insert: ("Geneva Conventions Act 1957 (c. 52.)

. In section 5 of the Geneva Conventions Act 1957 (reduction of sentence and custody of protected persons)—

  1. (a) in subsection (1), for the word "committal" there shall be substituted the words "the transfer of the proceedings against him"; and
  2. (b) in subsection (2)—
    1. (i) for the word "committal" the first time it occurs there shall be substituted the words "the transfer of the proceedings against him"; and
    2. (ii) for the words "remand or committal order" there shall be substituted the words "court on remanding him or transferring proceedings against him for trial".").

Page 134, line 27, at end insert: ("Naval Discipline Act 1957 (c. 53.)

. In section 109(4) of the 1957 Act (proceedings against persons suspected of illegal absence)—

  1. (a) for the words from "1952" to "justices" there shall be substituted the words "1980, that is to say the provisions relating to the constitution and procedure of magistrates' courts proceeding with a view to transfer for trial"; and
  2. (b) for the words "so acting" there shall be substituted the words "so proceeding".").

Page 135, line 3, at end insert: ("Theft Act 1968 (c. 60.) . In section 28(4) of the Theft Act 1968 (orders for restitution), for the words from ", the depositions" to the end there shall be substituted the words "and, where the proceedings have been transferred to the Crown Court for trial, the documents sent to the Crown Court by the magistrates' court under section 7(3) (b) of the Magistrates' Courts Act 1980."."). Page. 135, line 13, at end insert: ("Sexual Offences (Amendment) Act 1976 (c. 82.) . In section 3 of the Sexual Offences (Amendment) Act 1976 (application of restrictions on evidence at trials for rape etc. to committal proceedings etc.), for subsection (1) there shall be substituted the following subsection— (1) Where a magistrates' court considers an application for dismissal of a charge for a rape offence, then, except with the consent of the court, evidence shall not be adduced and a question shall not be asked at the consideration of the application which, if the proceedings were a trial at which a person is charged as mentioned in subsection (1) of the preceding section and each of the accused in respect of whom the application for dismissal is made were charged at the trial with the offences to which the application relates, could not be adduced or asked without leave in pursuance of that section.".").

Page 135, line 13, at end insert: ("Customs and Excise Management Act 1979 (c. 2.)

  1. —(1) The 1979 Act shall be amended as follows.
  2. (2) In section 147 (proceedings for offences under customs and excise Acts), in subsection (2), for the words from the beginning to "justices" there shall be substituted the words "Where, in England or Wales, on an application under section 6 of the Magistrates' Courts Act 1980 for dismissal of a charge under the customs and excise Acts, the court has begun to consider the evidence and any representations permitted under that section,".
  3. (3) In section 155 (persons who may conduct proceedings under customs and excise Acts), in subsection (1), for the words "examining justices" there shall be substituted the words "magistrates' court proceeding with a view to transfer for trial".").

Page 135, line 13, at end insert: ("Reserve Forces Act 1980 (c. 9.)

. In paragraph 2(4) of Schedule 5 to the Reserve Forces Act 1980 (proceedings against persons suspected of illegal absence)—

  1. (a) for the words "acting as examining justices" there shall be substituted the words "proceeding with a view to transfer for trial"; and
  2. (b) for the words "so acting" there shall be substituted the words "so proceeding".").

Page 137, leave out lines 28 to 30 and insert:

  1. (".—(1) Section 97 of the 1980 Act (summons to witness) shall be amended as follows.
  2. (2) In subsection (1)—
    1. (a) the words from "at an inquiry" to "be) or" shall be omitted; and
    2. (b) for the words "such a court" there shall be substituted the words "a magistrates' court for that county, that London commission area or the City (as the case may be)".
  3. (3) After subsection (1) there shall be inserted the following subsection—
    1. "(1A) Where a magistrates' court is proceeding with a view to transferring proceedings against an accused for an offence to the Crown Court for trial, subsection (1) above shall apply in relation to evidence or a document or thing material to the offence subject to the following modifications—
    1. (a) no summons shall be issued by a justice of the peace after the expiry of the period within which a 562 notice of the prosecution case under section 5 above must be served or the service of the notice of the prosecution case, if sooner; and
    2. (b) the summons shall require the person to whom it is directed to attend before the justice issuing it or another justice for that county, that London commission area or the City of London (as the case may be) to have his evidence taken as a deposition or to produce any document or thing.".
  4. (4) In subsection (2)—
    1. (a) after the words "subsection (1)" there shall be inserted the words "or (1A)"; and
    2. (b) after the word "court" there shall be inserted the words "or justice, as the case may be,".
  5. (5) In subsection (2A), after the words "subsection (1)" there shall be inserted the words "or (1A)".
  6. (6) In subsections (3) and (4), after the words "a magistrates' court" or "the court" wherever they occur there shall be inserted the words "or justice, as the case may be,".").

Page 138, line 12, at end insert: (". In paragraph 5 of Schedule 5 to the 1980 Act (transfer of remand hearings), for the words "sections 5" there shall be substituted the words "sections 4(4)".").

Page 138, line 12, at end insert: ("Contempt of Court Act 1981 (c. 49.) . In section 4(3) (b) of the Contempt of Court Act 1981 (contemporary reports of proceedings)—

  1. (a) for the words "committal proceedings" there shall be substituted the words "an application for dismissal under section 6 of the Magistrates' Courts Act 1980"; and
  2. (b) for the words from "subsection (3)" to "1980" there shall be substituted the words "subsection (5) or (7) of section 8A of that Act".").

Page 138, line 29, after ("trial") insert ("specified in a notice given by the magistrates' court under section 7 of the Magistrates' Courts Act 1980 or"). Page 138, line 41, leave out from ("words") to end of line 42 and insert ("from "a person's committal" to "beginning of the trial" there shall be substituted the words "the transfer of proceedings for trial by the Crown Court and the beginning of the trial;" ").

Page138, line 45, leave out from ("words") to ("; and") in line 47 and insert (" 'The trial of a person on charges the proceedings on which have been transferred for trial to the Crown Court-" ").

Page139, line 1, leave out second ("subsection") and insert ("subsections").

Page139, line 7, at end insert: ("(5) In this section references to the transfer of proceedings for trial are references to a transfer by a magistrates' court under section 7 of the Magistrates' Courts Act 1980 or by the prosecutor under section 4 of the Criminal Justice Act 1987 or section 53 of the Criminal Justice Act 1991 and the date of transfer for trial is the date on which the transfer is effected under the said section 7 or, where the transfer is by the prosecutor, the date specified in his notice of transfer." ").

Page139, line 7, at end insert: ("Mental Health Act 1983 (c. 20.) . In section 52 of the Mental Health Act 1983 (provisions relating to persons remanded by magistrates' courts)—

  1. (a) in subsection (2), for the words from "accused" to "or" there shall be substituted the words "court, on transferring proceedings against the accused to the Crown Court for trial, orders him to be safely kept in custody, or commits the accused in custody to the Crown Court"; and
  2. (b) in subsection (7)—
    1. (i) for the words from "inquire" to "into" there shall be substituted the words "proceed with a view to transferring for trial proceedings for"; and
    2. (ii) for the words from "commit" to "1980" there shall be substituted the words "transfer proceed-ings against him for trial".").

Page139, line 7, at end insert: ("County Courts Act 1984 (c. 28.) . In section 57(1) of the 1984 Act (evidence of prisoners), for the words "under committal" there shall be substituted the words "following the transfer of proceedings against him".").

Page139, line 31, at end insert: ("Agricultural Holdings Act 1986 (c. 5.) . In paragraph 12(1) of Schedule 11 to the 1986 Act (procedure on arbitrations under the Act), for the words "under committal" there shall be substituted the words "following the transfer of proceedings against him".").

Page141, line 12, at end insert: ("Coroners Act 1988 (c. 13.) . In section 16 of the Coroners Act 1988 (adjournment of inquest)—

  1. (a) in subsection (1) (b), for the words "examining justices" there shall be substituted the words "a magistrates' court which is to proceed with a view to transferring proceedings against that person for trial,"; and
  2. (b) in subsection (8)-
    1. (i) for the words "examining justices" there shall be substituted the words "a magistrates' court considering an application for dismissal under section 6 of the Magistrates' Courts Act 1980"; and
    2. (ii) for the words from "person" to "committed" there shall be substituted the words "proceedings against the person charged are transferred".").

Page141, line 39, at end insert: ("(4) In paragraph 6 of Schedule 6 (reporting restrictions), in sub-paragraph (8), for the words "sub-paragraphs (5) and (6)" there shall be substituted the words "sub-paragraphs (5) and (7)".").

Schedule 4, as amended, agreed to.

Clause 41 agreed to.

Schedule 5 agreed to.

Clauses 42 and 43 agreed to.

Clause 44 [Reduction in sentences for guilty pleas]:

Lord Rodger of Earlsferry moved Amendment No. 34:

Page 28, line 19, leave out ("it would otherwise have done") and insert ("the punishment it would otherwise have imposed").

The noble and learned Lord said: This is a drafting amendment to correct a grammatical error in the original clause. I beg to move.

Clause 44, as amended, agreed to.

9.30 p.m.

The Earl of Longford moved Amendment No. 35: After Clause 44, insert the following new clause: ( "Penalty for murder . No court shall be required to sentence a person convicted of murder to imprisonment for life.").

The noble Earl said: The effect of the amendment would be that if a person were convicted of murder he or she would not necessarily be given a life sentence; in other words, he or she may or may not be given such a sentence. I am not asking noble Lords either tonight or at a later stage, when there is a larger presence in the Chamber, to accept the amendment on the strength of my own personal convictions. Rather, I recall that in April 1991 this Chamber accepted such a proposal by a large majority, although the Minister, on behalf of the Government, did not like it.

On that occasion, two Lord Chancellors, including the noble and learned Lord, Lord Hailsham, favoured such an amendment as did the Lord Chief Justice and five Law Lords. Indeed, I was greeted with a large majority. Since then, in March 1993 my noble friend Lord Ashley introduced a Private Member's Bill to the same effect. That was carried without a Division. There was only one dissentient voice which was dealt with firmly by other noble Lords.

That was the position a year ago. This Chamber, without a Division, accepted a Bill which had the same effect as that proposed by my amendment. Subsequently, in December last a very high-powered committee of the Prison Reform Trust produced a large report which reached the same conclusion. The chairman of that committee was the noble and learned Lord, Lord Lane, (the previous Lord Chief Justice). Moreover, the noble Lord, Lord Windlesham, who is arguably the most enlightened of all former Home Office Ministers of recent years—without leaving out present company—was also a member of the committee. Therefore, the committee must carry a good deal of weight as regards this place.

Tonight I propose again the same amendment that has twice found favour in this Chamber and once with the committee chaired by the former Lord Chief Justice. Why should this place change its mind? I may be told that the time is inappropriate. As St Augustine said on an earlier occasion: Give me chastity…—but not yet!

Indeed, there may be some feeling of that nature. But what is supposed to have happened since that time a year ago? What changes have taken place? The noble Earl, Lord Ferrers, is still with us. He is, perhaps, as Sherlock Holmes once said of Watson, "the fixed point in a changing age". The noble Earl preaches just as acceptably whatever message he is required to deliver, even if a subsequent message contradicts an earlier one. At any rate, as I said, the noble Earl is still with us.

Presumably the latest figures as regards crime for the year 1993–94 are not available, or at least they have not been published. However, from the last available figures it would seem that the crime rate actually went down after many years of remorseless increase. Therefore, the change cannot all be put down to the increase in crime. So what has happened in the meantime? Well, one thing has certainly happened: there has been a new Home Secretary. Mr. Howard arrived on the scene with scant knowledge of prisons. Indeed, there was an argument in the Chamber as to whether he had once visited a prison or had in fact never done so. I took the charitable view and suggested that he had probably once visited a prison.

However, within a very short time Mr. Howard was delivering a programme consisting of 27 points dealing with law and order. Of course, that must be regarded as somewhat changing the atmosphere—at any rate, the atmosphere on the Conservative Benches. Therefore, I understand how hard it is for loyal Members of the Conservative Party. I know that I was one once but that was long ago. Indeed, no noble Lord here tonight was born at the time, and I think that is literally true.

No loyal member of the Conservative Party will find it quite easy in the age of Howard. Although nothing else has changed, he is a new phenomenon. Some people would say that is inappropriate—I hope that it is not felt to be so—because Mr. Howard's emergence on the scene, ignorant of prisons, with a totally new policy, makes what was right a year ago not right tonight. At any rate we may be told that by one or two speakers. So there we are: that is the situation. I shall not spend time over the merits of this proposal as they have been developed many times in this Chamber, not least by some of those who do not seem quite so strongly of the faith in these latter days. At any rate those merits have been strongly argued in this Chamber.

Put in the simplest possible way, the argument is that, when people are convicted of murder, it may mean one thing or it may mean another and the same sentence is quite inappropriate when applied to crimes of totally different character. The noble Lord, Lord Ashley, in a moving speech, pointed in particular to women who had been brutally maltreated for years by their husbands, and also to those who kill out of love and mercy. I, like other noble Lords —obviously some of those who are in the legal profession but some others not necessarily in the legal profession—have been in touch with convicted murderers for many years. I would say that I am now in touch with six such convicted murderers. Of those, three of the murders had been unpremeditated domestic murders that were not contemplated five minutes beforehand.

One case is that of a woman who was not present when her husband's mistress was murdered by two men and a woman. However, the extraordinary thing is that the woman I am discussing is in prison now while the three people who committed the murder are free. That, if you like, is just one of the unpleasant anomalies of this situation. However, there it is. The arguments for this measure have convinced this Chamber in the past. I shall not necessarily press this amendment tonight but I shall certainly press it at one stage or another, presumably the next one. I beg to move.

Lord Morton of Shuna

I hope that the noble Earl will not press this amendment to a Division tonight. The position that I have adopted has, I think, been clear for some years. The noble Lord, Lord Windlesham, and I —I believe it was in 1986—started this fight and we have continued, I hope consistently, since then. Although I have changed my position in this Chamber, I have not changed my conviction on this issue.

I consider it to be totally wrong that the sentence of a person convicted of a crime should be decided by a politician rather than by the judiciary. That has been behind the view which the noble Lord, Lord Windlesham, and I put forward in 1986 and have put forward consistently since then. Both of us had the honour of serving on your Lordships' Select Committee on Murder and Life Imprisonment and our views in that committee were noted.

I had the pleasure of speaking at one point in support of the measure that the noble Lord, Lord Ashley, put forward last year. Therefore I believe I can at least claim to have been consistent on this point. This Chamber has been consistent over the past six or seven years in saying that life imprisonment for murder is the wrong sentence and that the judiciary should have the opportunity to decide the appropriate sentence whether it is for the terrorist or for the person who kills in what is known as euthanasia.

However, this is not the occasion on which we should vote. It is late at night. In the debates which we have had previously lawyers far more eminent than I, including those sitting on the Bench on which the noble Lord, Lord Windlesham, is now sitting, played a prominent part in the discussion. They are not present. Any vote that took place at a quarter to ten would not involve anything like the numbers who would participate in a vote which took place at seven o'clock, for example.

If we are to be serious about this subject, and I insist that we should be, there should be a serious debate with proper warning that the subject is to arise. There should be a debate in which everybody has the opportunity to express his or her views and arrive at a decision. I am confident that noble Lords will not have changed their minds and will come to the same decision. It is important that it should be a solid decision, with votes in three figures, as it has been on previous occasions.

For those very practical reasons I implore the noble Earl not to press his amendment at this stage and certainly not to irritate the Minister, who, I am convinced, on all occasions has acted totally within the merits of his conscience.

Lord Windlesham

It is a pleasure to follow the noble and learned Lord, Lord Morton of Shuna. As he said, we have together for many years argued the case which the noble Earl, Lord Longford, has put forward again so attractively tonight. My mind went back to the debates when the present Lord Chancellor replied for the Government for the first time from the Woolsack on the criminal justice legislation of 1987 and 1988. At that time he agreed to explore the possibilities of setting up a Select Committee of your Lordships' House. That was taken further with Mr. Hurd, who was Home Secretary at the time, and resulted in the report of the Select Committee on Murder and Life Imprisonment, of which the noble and learned Lord, Lord Ackner, and one or two others in the Chamber this evening were members.

I shall not rehearse the history since then. The noble Earl, Lord Longford, has done so exhaustively and fairly. I would add one further round of ammunition —namely, the report of the Select Committee of this House on Medical Ethics, which was debated earlier this; month and which reached similar conclusions. All these reviews and inquiries, and the overwhelming body of informed opinion over almost a decade, have come to the same conclusion—namely, that the mandatory penalty for murder should be replaced by a maximum penalty of life imprisonment to be imposed at the discretion of the court where it is believed to be appropriate.

As the noble Earl pointed out, I have been a member of two separate committees on this subject. I have spoken and written on the subject over a considerable period of time. I had the privilege of being a member of the Committee on the Penalty for Homicide chaired by the noble and learned Lord, Lord Lane, the former Lord Chief Justice, last year. I should like to record in public the courage of the noble and learned Lord, Lord Lane, in taking on the chairmanship of that committee so soon after his retirement as Lord Chief Justice. It is an indication of how strongly he felt on the issue. From first-hand experience I can assure the Committee that he was an extremely active chairman and his mark can be seen in the report. I do not think it necessary to go through the reasons—they are summarised on the opening page—as to why the mandatory life sentence for murder is founded on an assumption, that murder is a crime of such unique heinousness that the offender forfeits for the rest of his existence his right to be set free". In words that could only have been written by the noble and learned Lord, Lord Lane, the following is stated: That assumption is a fallacy. It arises from the divergence between the legal definition of murder and that which the lay public believes to be murder". The remainder of the argument flows from that.

I should like to assure the noble Earl, Lord Longford, that my conviction that a change is necessary is undiminished and so is my faith that it will come. But it will not result from this Bill. There is no possibility of the House of Commons or the Home Secretary accepting such a change at present. It is not an opportune time. But that is not to say that there is any lessening in the strength of the argument for reform.

9.45 p.m.

The Earl of Longford

Perhaps I may ask the noble Lord why debate was appropriate in 1991 and 1993? The situation in the House of Commons was the same. The Home Secretary was not quite so violent in his attitude to criminals. But the Government were against the issue then. So why has the noble Lord now switched?

Lord Windlesham

Most of us are conscious that there has been a marked change in public opinion recently on criminal justice and matters concerning law and order. However, the noble Earl need not despair. As he knows—and he has had longer experience than almost all of us in this House—opinion is volatile. Eighteen months or so ago, the noble Lord, Lord Nathan, led a delegation, including the noble and learned Lord, Lord Ackner, and myself, to see the Home Secretary (now the Chancellor of the Exchequer). He was ready to consider the pros and cons of the matter with an open mind.

I do not wish to get into an argument with the noble Earl. I admire him so much, and I believe that the House does too. We admire his idealism and it has been shown once again in the speech he made tonight. We admire his dedication to the cause of penal reform, and his experience. I do not refer simply to his compassion and idealism, but his sheer practical experience over a long period. He has provided an inspiration for many people. It is right that the voice of conscience should be heard in our debate tonight. However, like the noble Lord, Lord Morton of Shuna, I am sure that neither tonight nor any later stage of this Bill is the time to press the issue to a Division.

Lord Ashley of Stoke

Perhaps I may make a brief intervention. I readily recall the distinguished speeches made by the noble Lord, Lord Windlesham, and the noble and learned Lords, Lord Ackner and Lord Morton, when I brought a Bill forward in February last year. My noble friend Lord Longford, has done a great service by raising the issue again tonight. I hope that it has suitably embarrassed the noble Earl, Lord Ferrers, who has an uncomfortable line to pursue if he sticks to his brief, which is a pathetic document issued by the Home Office. I hope that the noble Earl will quickly rewrite his notes in the light of the distinguished speeches already made. It beats me how so good a Minister can peddle the line which he defends—the mandatory life sentence— on the grounds put forward by the odd individual who says that murder is a unique crime which requires a unique deterrent. MLS is not a unique deterrent.

I began joining noble Lords who have been pursuing the issue for so long because of my concern, as the noble Earl, Lord Longford, said with battered women who react and then kill after years of brutality. The Devlin dictum was fine in the 1940s: people had to have a sudden and temporary loss of self-control, because we did not understand the effects of violence. However, today we do and we have shown it by our treatment of veterans of the Gulf War and the hostages in the Middle East. The Americans have done it with the treatment of their troops who were in Vietnam.

However, it goes wider than battered women. I have looked at the issue time and time again since I began to support noble Lords who have been campaigning longer than I. I cannot see a single case for arguing in defence of the mandatory life sentence. I shall listen with great interest to what the noble Earl, Lord Ferrers, says and I hope that his argument will be better and possibly more refined, though it will not be more convincing than in the past. I hope that he will accept the amendment.

As a final word, I cannot speak for the noble Earl, Lord Longford, but I believe that he is far too good a tactician to push the amendment to a vote tonight. If it were a small vote, it would not help the cause. However, the noble Earl did right to raise the issue, giving us an opportunity to show that the House of Lords is practically unanimous in condemning the Government's defence of an outdated, anachronistic and unfair provision.

The Marquess of Hertford

Without rehearsing the arguments in favour of the amendment which I believe are obvious to everyone, I merely wish to put on record my strong support for the amendment moved by the noble Earl. I suppose that convention prevents me calling him my noble friend. This seems a long overdue change in the law. It has been referred to in the debate on euthanasia and at many other times. The words "common sense" have been uttered once or twice earlier this evening, notably by the Minister, and I think that common sense will prevail sooner or later, if not tonight.

Lord Simon of Glaisdale

I hope that the matter can now be brought to a conclusion. I have yet to find anyone outside the Government who thinks that the provision of a mandatory life sentence for murder is sensible. The argument put forward is that murder is a uniquely heinous offence and therefore deserves a uniquely exemplary sentence. A number of things are wrong with that. Murder is not a uniquely heinous offence; some murders, it is true, are horrible, but so are many other offences. Some murderers should be the objects of pity rather than horror and revulsion.

Nor is it true that the penalty of imprisonment for life is the most exemplary of all penalties. We still have the death penalty on the statute book for some offences. Nor is it true that a wrong message would go out to the public unless a sentence of imprisonment for life were passed. The public are not so stupid that they do not know that the profession is contradicted by the performance. They look at the performance. They see that prisoners are let out after an average of nine years and sometimes after a very much shorter period, and that is taken to be the reality. The mere fact that a sentence of life imprisonment has been passed does not send out the right message, but precisely the wrong one. It brings the pronouncement of the court and the law into ridicule. As I said, the general public compare the performance with the proclamation.

On this matter, everybody is out of step: your Lordships, when the matter was originally debated, and members of your Lordships' Select Committee on this very subject were almost all out of step. The Bill of the noble Lord, Lord Ashley, was given a unanimous Second Reading in this Chamber and was passed—all your Lordships were out of step. Then there came the Lane Committee—every member of that committee was out of step. And perhaps most out of step was the former Lord Chief Justice who headed the committee.

But that does not end the matter. There was then the committee on medical ethics. It was a distinguished committee, greatly admired in its deliberations. But unfortunately all the members of that committee were also out of step. It is only the Home Office which is apparently in step.

The noble Lord, Lord Windlesham, was a little pessimistic, I thought, about the prospect. The noble Earl, Lord Ferrers, is not going to go on talking nonsense indefinitely because that is not in his nature. I hope tonight that he will mark the change and accept the noble Earl's amendment.

Lord Carlisle of Bucklow

Perhaps I might intervene very briefly. I merely wish to say this. I have not had the good fortune to speak in any of the debates that have taken place since the report in 1989 of the noble Lord, Lord Nathan, which I believe has been debated twice in this House. I say to the noble Earl, Lord Longford, that I have total sympathy with the argument that he puts forward and the argument that was put forward in that report.

I personally believe that, whereas life imprisonment should be the maximum penalty for murder—and probably the likely penalty for murder—there are cases where it is inappropriate that a life sentence should be passed. I would welcome the opportunity for the courts to have a discretion in this matter. However, I am bound to say frankly to the noble Earl, Lord Longford, that I do not feel able to support him in the Lobbies tonight were he to choose to push this matter to a vote. My reason is this. I do not believe that a matter of such importance —it is of importance not only to Parliament but to the public as a whole—namely, the issue of what is the right sentence for murder, should be decided in a vote some time the other side of 10 o'clock at night in the Lords. That would send back a message to the other House that this decision was arrived at by perhaps a derisory majority in a very small vote. If your Lordships—and particularly the noble Earl, Lord Longford, much of whose concern over recent years has been to see this reform reach the statute book—really wish that to be achieved, it is much more likely to be achieved if the vote from this House was a substantial vote at an hour when the House was full. The Commons would then note the view of the Lords, rather than the suggestion that the measure was passed by a very small majority at a very late hour this evening. That is why, just like the noble and learned Lord, Lord Morton of Shuna, and my noble friend Lord Windlesham, although respecting the intentions behind the amendment, I beg the noble Earl not to push it to a vote at this stage.

10 p.m.

Lord Ackner

I should like to make but a short contribution. My first point is that, as an advanced democracy, we ought to feel a high degree of shame that, when it comes to what is alleged to be the most heinous of crimes, the length of time that a person spends in imprisonment is determined by a politician and in private. That is quite contrary to the way in which justice should be administered.

My second point in regard to the pessimism is quite short. Every government is anxious not to be thought to be going soft on crime. That was appreciated by the Select Committee on Murder and Life Imprisonment, on which I had the privilege to serve. Paragraph 178 of its report stated: After the introduction of a discretionary sentence for murder, the Committee anticipate that the average length of time served under a life sentence would be considerably longer than it is now". That, of course, was because it would be reserved for the very serious offences. The committee added: 'The Committee expect that their proposals will lead to very lengthy penal sanctions being set in the most grave cases. In some cases, this may result in imprisonment for the rest of the prisoner's life". The reason for the pessimism is that this Government's anxiety not to be seen or thought to be soft on crime has reached near pathological dimensions. No doubt we shall continue to hear the usual parrot cry of "the uniquely heinous offence". I read the debate on the report of the Select Committee on Medical Ethics. The justification for the life sentence was that a crime which involves an intent to kill is unique. But murder does not consist merely of an intent to kill. Murder can arise, and most frequently does arise, not out of an intent to kill but an intent to do grievous bodily harm. So even that, the last of the explanations, does not wash.

But, for the reasons that have been given by my noble and learned friends and in view of the various comments with regard to what would be thought to be the case if we were to divide on this issue tonight, I am sure that the noble Earl, Lord Longford, will be persuaded not to pursue the matter.

Baroness Mallalieu

The humanity and tenacity of the noble Earl, Lord Longford, in his work on behalf of life sentence prisoners are legendary and admired by us all. The arguments which he put forward and which have been echoed by many noble Lords tonight, many of whom have spent much time and trouble already on this issue, are ones which have already carried the day in this Chamber on a number of occasions.

It must surely be one of the most striking absurdities of our criminal justice system that a judge who presides over a trial for the most serious of all criminal offences, who hears all the evidence and who sees the defendant, is not allowed to sentence at the end of the trial other than as Parliament, which has done none of those things, dictates. For me, the most depressing part of tonight's debate was the reference by the noble Lord, Lord Windlesham, to an earlier visit with a delegation to a previous Home Secretary, when the door appeared to be open. It now appears that the door to this sensible and important reform has been firmly closed by the present holder of that office. I can only say, in supporting my noble friend, that I hope that the darkest hour is just before the dawn.

Lord Wigoder

For the reasons already given in this not entirely evenly balanced debate, I simply place on record that my noble friends on these Benches have always supported the amendment in the past and do so again this evening.

Earl Ferrers

The noble Lord, Lord Wigoder, invariably incorporates realism into a debate, and he did so when he said that so far this has not been an entirely even-handed debate. The noble Earl, Lord Longford, returns to a subject with which we know he is impassioned. He is always so courteous in his remarks. He spoke graciously of me when he said that I spoke eloquently on any subject on which I am asked to reply but that I will say whatever the line happens to be. Accepting a compliment from the noble Earl is rather like shaking hands with a fish: it slides all over the place and one does not know whether one has hold of the head or the tail. However, I accept the compliment in the spirit in which he meant it.

The noble Earl made various remarks and said that he would not go into the detail of the amendment because he had gone into it so many times before. That placed me in somewhat of a predicament. I thought that as the noble Earl did not want to go into the amendment, perhaps I should not bother to reply. However, other Members of the Committee decided to go into it in detail. The noble and learned Lord, Lord Morton of Shuna, whose views are always so eloquently expressed, advised the noble Earl, Lord Longford, not to divide the Committee this evening. I do not know whether or not that will precipitate him into dividing the Chamber, but I am sure that he will take the corporate advice of my noble friends Lord Windlesham and Lord Carlisle.

This is a debate on a matter on which people hold strong views and hold them passionately. My noble friend Lord Windlesham says that the overwhelming body of informed opinion agrees that the mandatory death sentence should go. Perhaps that is the view of the overwhelming body of informed opinion—I do not know where that information comes from—but I do not believe that it is the overwhelming view of the body of opinion. It depends whether it is important to follow the advice of informed opinion or simply opinion. I certainly feel that the majority of people—and I shall come to this—would not favour the abolition of the mandatory death sentence.

Lord Wigoder

Perhaps the noble Earl will forgive me interrupting but he made a slip of the tongue. We are discussing a mandatory life sentence not a death sentence.

Earl Ferrers

I am likely to make slips of the tongue all over the place in this kind of debate. But I am grateful to the noble Lord, Lord Wigoder, for drawing me up on that slip of the tongue.

My noble friend Lord Hertford said that it is common sense that the mandatory life sentence should go. It is always easy to disparage someone else's view by saying that one's own view happens to be common sense. That is not a view which would accord with everyone. The noble Lord, Lord Ashley of Stoke, took a sincere view over the matter. He is always very understanding about it. He said that this was an embarrassing time for me. I am deeply grateful to him for his courtesy and sympathy. I do not know why he should feel so effusive about the matter. He said that I hold a rotten brief and he hoped that I would rewrite it. That is an extraordinary thing to say before I have even opened my mouth. He does not know what is in my brief, unless he happened to crib it during the dinner break, and I do not suppose he did that because he is not likely to do so.

Along comes the noble and learned Lord, Lord Simon of Glaisdale, who says that he has yet to meet anyone outside government who approves of the mandatory life sentence—the noble Lord, Lord Wigoder, will be glad to see that I got it right this time. He should go into the outside world and he would find that there are plenty of people who feel that the mandatory life sentence is correct. The noble and learned Lord says that the Government say everyone else is out of step. I sometimes wonder whether the intellectuals are out of step with everyone. He said that one must not go on talking nonsense indefinitely. When the noble and learned Lord rose to speak, I had not yet spoken, so I do not see how he could have thought that I was speaking nonsense indefinitely.

Lord Simon of Glaisdale

I am afraid that the noble Earl has now spoken exactly as I anticipated.

Earl Ferrers

I can tell the noble and learned Lord that he has heard nothing yet. Let me tell him that we continue to believe that it is quite right to retain the mandatory life sentence to mark not, he will be glad to know, that it is a uniquely heinous offence, as the noble and learned Lord, Lord Ackner, thought I was going to say, but to mark the unique nature of the offence of murder and to provide in the case of murderers the particular safeguard that is afforded by the mandatory life sentence.

It is argued that there is no case for treating murder differently from any other very serious offence against the person. We do not accept that view. There is some force to the argument that some offences do not result in the death of a victim but are nevertheless so serious that they deserve the most condign of punishments. But it is difficult to deny that murder is unique in that it involves the deprivation of another person's life with intent to cause at least grievous bodily harm. The taking of someone's life under such circumstances inevitably sets murder apart from any other offence. We should not therefore be surprised that it is an offence which has particular resonance among the general public and implications for public confidence in the criminal justice system as a whole. I do not think we should underestimate that.

It is still less than 30 years since the death penalty for murder was abolished and was replaced by the mandatory life sentence. When your Lordships discussed this issue in 1991 my noble friend Lord Waddington graphically paraphrased the message that Parliament sent to the people of this country when the change was made. What my noble friend Lord Waddington virtually said was this: "Don't worry. Parliament was saying that the unique nature of the crime of murder will still be marked by a special punishment. The murderer, because he has taken another life, will still surrender his own in a very important respect. He may be released on licence, but the sentence will last for life. He will not be released without the consent of the Home Secretary, who will be answerable to Parliament if things go wrong. And because the sentence will last for life, he will be liable to re-call after his release if he does not behave and if it is thought that, once again, he has become a danger to the public".

That was the message which Parliament gave to the country when the death penalty was abolished. There is no evidence that public concern about murder has abated since April 1991 or since 1965. Indeed, in the view of many people, the public concern has become worse. It seems to me that it would be difficult to explain to the public why we were responding to that concern by abolishing the very safeguard which was put in place when the death penalty for murder was abolished.

The noble Earl, Lord Longford, reminded us again tonight that your Lordships hold very strong views on this subject. We shall continue to keep this situation under review and to listen carefully to what your Lordships say. But for the reasons I have explained, we are not yet persuaded that it would be right or that it would be necessary to abolish the mandatory life sentence.

Lord Ackner

Before the noble Earl sits down, does he agree that the public take the view that the present sentence of life imprisonment has become devalued because in the public perception it works out, rightly or wrongly, to an average of about eight or nine years? That is the consequence of spreading the life sentence over murders as moderate as mercy killings to those that obviously require incarceration for the rest of the life. Does the noble Earl agree that if the life sentence were limited to the very serious murders the public sense that the sentence had been devalued would no longer continue?

Earl Ferrers

I agree that the public's reaction is that people are let out from prison, after having received a sentence of life imprisonment, far too early for the comfort of the public.

10.15 p.m.

Lord Monkswell

Perhaps I may question the noble Earl a little deeper. Unfortunately, we are in the realms of sound bite and sloganistic politics. The noble Earl says that if you ask the man in the street whether someone who has committed murder should be sentenced to life imprisonment, the answer will be "yes" in the vast majority of cases. But we have a problem in that, on the one hand, there is acceptance that if a person commits a heinous crime like murder that person should receive life imprisonment. On the other hand, there is the realisation that life imprisonment does not actually mean that. The other factor is how the general public perceives different crimes which we currently label as murder. There may be. a legal definition which says that when someone takes the life of another that is murder, but in the common-sense view of the man in the street that is not necessarily the way it will be seen.

We have the problem of slogans and sound bites which appear to make sense, but the underlying reality is that people can see that it does not make sense. How do the Government see a way out of this impasse if it is not by accepting an amendment such as that moved by the noble Earl?

Earl Ferrers

I am not quite certain what sound bites are. I merely say to the noble Lord, Lord Monkswell, that a very great many people and public opinion generally, feel that there is a great deal to be said for capital punishment. If that does not take place then there has to be a life sentence in lieu. If Parliament decides to remove the mandatory life sentence as well and to devalue to something else, the general public will not understand.

The Earl of Longford

I shall set the mind of the Committee at rest. I do not propose to divide the Committee tonight. It is not that I am weakening in my conviction, because I propose to bring back this amendment at the next stage. It is not for me to say whether it will come on at the next stage at a time when many people are available. The authorities may choose to play tricks and the amendment may be dealt with at midnight. I cannot decide that. Infallibly, I shall move this amendment at the next stage. The noble Earl's reply was not one of his happiest, but as his other replies are often so happy, what I have said is not really dispraise. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Earl of Longford had given notice of his intention to move Amendment No. 36:

After Clause 44, insert the following new clause: ("Rights of life sentence prisoners to review of sentence

  1. .—(1) All prisoners sentenced to imprisonment for life, other than juveniles and under-14 year olds, shall have the right to have their sentence reviewed by a court when they have served 15 years in prison, unless they have already been released on licence.
  2. (2) The rights conferred on adult life sentence prisoners by subsection (1) above shall apply to—
  3. 575
    1. (a) all juveniles convicted of murder, after 10 years; and
    2. (b) all under-14 year olds when they reach the age of 18.").

The noble Earl said: In view of the lateness of the hour I shall not move this amendment tonight. I shall move it at the next stage.

[Amendment No. 36 not moved.]

Lord Ackner moved Amendment No. 37:

After Clause 44, insert the following new clause: ( "Offence of excessive use of force in self-defence

. Where a person kills in a situation in which it is reasonable for some force to be used in self-defence or in the prevention of crime but the defendant used excessive force, he shall be guilty of manslaughter if at the time of the act he honestly believed that the force he used was reasonable in the circumstances.").

The noble and learned Lord said: This amendment has at least two striking features. The first is that my noble friend Lord Campbell of Alloway has unequivoc-ally signified his support by putting his name to it immediately under mine. He is not present for personal reasons which he has explained to me. He very much regrets his absence.

The other striking feature about the amendment is that, unlike the last amendment, it should be wholly uncontroversial. It provides that where a person kills as a result of using excessive self-defence, it should not be murder, as it is now, but manslaughter. By way of support I have the recommendation of the Criminal Law Revision Committee that the new defence, as I have spelt it out in my amendment, should be provided. In support I also have the report of your Lordships' Select Committee on Murder and Life Imprisonment whose Members were unanimously of that view. I quote: if murder was to be reserved for those homicides which are most deserving of stigma, this situation does not seem to be one of them".

It was pointed out in paragraph 88—again, I quote: 'The Lord Chief Justice told the committee that he had always thought it wrong that a person who goes too far in self-defence should be convicted of murder".

He should be convicted of manslaughter which provides the judge with the discretion, if he is so minded, to impose imprisonment up to the extent of life imprisonment although one would not have anticipated that in the bona fide use of self-defence, albeit excessive, so serious a sentence would be imposed.

My support for this amendment is that to which I have just referred. It justifies me in submitting that the amendment should be wholly non-controversial. I beg to move.

Lord Irvine of Lairg

The judgment of a court as to whether excessive force is used is necessarily retrospective. The judgment by a defendant of what force is reasonable in self-defence is taken in the agony of the moment. It is not possible in such cases to make too nice a measurement of the force that is appropriately used in resisting an attack. In our view, the amendment gets the balance right. We think that a jury would be well able to come to a view as to whether the defendant had the honest belief that is set out in the amendment, and we support it.

Lord Wigoder

I do not know whether my noble friend Lord Hutchinson of Lullington, who cannot be here this evening, will forgive me for supporting the noble and learned Lord, Lord Ackner, no less than twice in one evening, but I am happy to do so on this occasion.

It seems to me that the present test, which involves importing a reasonable man into the situation, is not appropriate, whereas it is entirely appropriate that the test should be what the defendant honestly believed was reasonable at the time. For that reason, we support the amendment.

Lord Rodger of Earlsferry

I accept that the point raised by the noble and learned Lord, Lord Ackner, is a difficult one on which various views can be held. I accept also that the substance of his amendment has been the subject of a recommendation by the two bodies to which he referred.

However, the Government are not persuaded that in this matter, which I recognise is very delicate, the balance should be disturbed. I accept that, for the reasons to which the noble Lord, Lord Irvine, referred, the present test can occasionally seem very demanding because a jury looks at these matters coolly whereas ex hypothesi the accused, the defendant, will have been acting in very different circumstances. However, as the Committee knows, the attention of the jury is always directed to that fact. Members of a jury are always told that they must not use too fine a jeweller's scales when weighing up such matters.

The effect of the amendment would be to say that the defendant's degree of guilt would depend upon his honestly held belief. That means that the degree of guilt would depend on the particular circumstances and set of beliefs which any particular defendant happened to have. We are not persuaded that it is appropriate to differentiate the degree of guilt simply by reference to something as entirely subjective as a set of beliefs.

We are anxious, in particular, that no signal should be sent of a reduction in the standard of the test required by law when we must consider the position of those who use weapons in the course of their public duties. Nor would we wish people to think that they could use force with even this reduced degree of blameworthiness; for example, in defence of property. It might give rise to undesirable behaviour on the part of people acting in some way as vigilantes.

I realise that different views can be entertained on this matter. I accept that these recommendations have been made but the matter has been considered over the years by courts in England and in Scotland and overseas. At this time we are not persuaded that a change should be made.

Lord Ackner

Whenever I hear the phrase, "The Government are anxious that a signal does not go out", my criticism that the Government are suffering from a pathological anxiety not to be thought to be going soft on crime is reinforced. The reply of the noble and learned Lord the Lord Advocate does not in fact, but almost seems to, suggest that my amendment will result in the acquittal of a person who uses excessive self defence honestly believing that the force was reasonable in the circumstances. He is to be found guilty of manslaughter, just like a person who kills under provocation is not guilty of murder but guilty of manslaughter.

It is obviously too late to divide the Committee. However, so unsatisfactory a reply will no doubt act as a stimulus to do precisely that on a later occasion. Accordingly, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Ackner moved Amendment No. 38:

After Clause 44, insert the following new clause:

( "Suspended sentences

. In section 5 of the Criminal Justice Act 1991, paragraph (b) of the subsection (2) substituted for subsection (2) of section 22 of the Powers of the Criminal Courts Act 1973 (Suspended sentences) shall be omitted.").

The noble and learned Lord said: With this amendment I invite the noble Lord, Lord Wigoder, to complete the hat trick. It is one which I am sure will appeal to him and to my old friend the noble Lord, Lord Hutchinson of Lullington. This again should be non-controversial. I say that because the Home Secretary, when addressing the Conservatives of Boothby on 6th November, said: I believe punishment deters crime. Fear of punishment will always be an important weapon in the fight against crime".

In the past, suspended sentences in particular, when combined with significant fines, have provided a very effective threat hanging over defendants' heads for the year or two that they applied. But Section 5(2) (b) of the ill-fated Criminal Justice Act 1991 seriously fetters the judges' current discretion. It can be exercised only where the circumstances are, in the words of the Act, "exceptional". As the law now stands, "exceptional circumstances" cannot cover character, youth, early pleas of guilt, provocation, the existence of dependent relatives and the fact that the offence caused the loss of a career, the loss of a home, the loss of pension or even such severe depression as to give rise to suicide attempts.

I submit that that section is but the residue of the misguided philosophy reflected in the 1991 Act that judges can do justice if they do it sitting in blinkers. In the same way as significant amendments were made in the Criminal Justice Act 1993 to the Criminal Justice Act 1991, I hope that this subsection will be repealed, with the result that fewer people will go to prison and with the result that the fear of punishment will continue to act in the fight against crime. I beg to move.

10.30 p.m.

Baroness Mallalieu

We support the amendment. Anything which allows a member of the judiciary, when sentencing, to have before him a full range of options is to be encouraged, particularly in circumstances where the judge would wish to avoid the use of an immediate custodial sentence but, at the present time, finds himself unable to do so. For those reasons, we support the amendment.

Lord Wigoder

Whether I am bowling slow leg breaks or playing centre forward, I am not entirely sure. But 1 am very happy to attempt to complete the hat trick to which the noble and learned Lord, Lord Ackner, referred.

I support the amendment without any hesitation. Many of us who have sat for long periods trying criminal cases always welcomed the fact that we had the widest possible range of sentences at our disposal. The power of ordering a suspended sentence on some occasions proved to be highly effective and I should be very sad indeed if that power were not to be restored.

Lord Simon of Glaisdale

This evening the Government seem to be in no particular mood to listen to anything that is said in this Chamber. Nevertheless, for the little that it is worth, I too support the amendment.

Lord Rodger of Earlsferry

The Government always listen to what is said in this Chamber. They do not always respond in quite the way that Members of the Committee would wish. I have listened to what has been said. I was interested in particular in the support of the noble Baroness, Lady Mallalieu, for the amendment because, when the provision was introduced in 1991, the noble Lord, Lord Richard, wished to do away with suspended sentences. It may be that circumstances have changed.

As the noble and learned Lord, Lord Ackner, knows, the philosophy behind the 1991 Act was to stress the desirability of using options like community service and probation and so on when they were appropriate. Imprisonment was to be used only when that was truly the sentence which was required. In that context, it seemed strange that, having determined that prison was the appropriate sentence, it was generally the case that judges sometimes suspended that sentence. Therefore, that person would receive no effective punishment while somebody convicted of a lesser offence would be undertaking community service work.

Of course, I come from a jurisdiction which does not have suspended sentences but which has deferred sentences. I accept that the effect which such sentences may have is that described by Members of the Committee. I accept, and the Government accept, that there is a role for those suspended sentences. When the matter was introduced, I am aware that the noble and learned Lord made similar points to those which he made today.

If the present provision works badly and denies sentencers the opportunity to use an option which they believe is desirable, we are not saying that our minds are closed on this matter. As the noble and learned Lord will imagine, we have received many, many representations in relation to that legislation and in particular with regard to the previous convictions and unit fine provisions. We acted on those, but this is not a matter on which the Government have received a large number of representations from the judiciary. But, having said that, if the provision proves to be working badly, we would be prepared to consider the matter further as time goes by. However, at present we are not convinced that it is working badly. In those circumstances, I cannot agree to the amendment.

Lord Ackner

Before my noble and learned friend sits down, can he tell the Committee what sort of inquiries have been made since November 1993, when I raised the same point during the third day of the Debate on the Address (as reported in Hansard at col. 216 on 23rd November)?

Lord Rodger of Earlsferry

I cannot give the noble and learned Lord that information. However, I shall write to him on the matter and inform him of what has been done in the interim.

Lord Ackner

In anticipation of receiving that very important information, I shall withdraw the amendment with a view to considering whether adequate steps have in fact been taken.

Amendment, by leave, withdrawn.

Clause 44 agreed to.

Clause 45 [Restrictions on reports of proceedings in which children or young persons are concerned]:

Lord Mottistone moved Amendment No. 39:

Page 29, leave out lines 45 and 46.

The noble Lord said: Clause 45 introduces a revised Section 49 of the Children and Young Persons Act 1933, which relates to the legislation that prevents the publishing of the names, addresses, schools and photographs of children who are concerned with legislation in a youth court or similar. I am sure that Members of the Committee will agree with me when I say that it is most important that children who are involved in the courts in any respect should be kept anonymous as long as possible; and, indeed, forever, as far as is possible.

Subsection (5) (a) of the clause makes an exception to the general rules; namely, that a court may dispense with the special protection for children to which I referred if,

"it is appropriate to do so for the purpose of avoiding injustice to the child or young person".

So far, so good. However, subsection (8), which is the subsection that I seek to remove by way of my amendment, says: 'The court's power under subsection (5) above may be exercised by a single justice".

I believe that particular point to be inappropriate. I say that because it seems to me that the whole business of protecting a child from publicity is much too important to be left relaxed, for whatever reason, at the discretion of a "single justice". A single justice may be a new and inexperienced justice who does not have the experience of such a case. There is really no reason why there should not be a bench of three justices for the occasion such as would happen normally.

It seems to me that such a new relaxation—indeed, it did not occur in earlier legislation—would not help very much. It is not as though justices cannot be assembled for making such decisions quite simply. It has no real significance, and I am rather puzzled as to why the Government should have put subsection (8) into the Bill. I hope that my noble and learned friend the Minister will be able to tell me either that the Government will look again at the provision so as to determine why it is there or that they will agree to my amendment tonight. I beg to move.

Lord Rodger of Earlsferry

The reason for the provision being in the Bill is really to deal with particular situations of urgency. As my noble friend will be aware, subsection(5) (b) applies where the child, is unlawfully at large [and] it is necessary to dispense with those requirements for the purpose of apprehending him and bringing him before a court". There may be a situation where a juvenile who has been charged with a very serious offence is on the run and there is a serious and immediate risk to public safety. In that kind of situation a decision to lift the ban on identification would require to be taken urgently. We would not want action to be delayed simply because it was impossible to assemble the necessary three justices. For that reason this particular provision is inserted. It is, as my noble friend will see, merely a permissive provision and of course it may well be the case that in the vast majority of situations where this power has to be exercised—we would not, of course, anticipate there would be many of them—it would be done by the full court. But it is to allow for the possibility of having to take such a decision in circumstances of urgency where otherwise there would be a potential danger to the public that we have thought it right to include this power in subsection (8).

Lord Mottistone

That puzzles me because the power in subsection (5) (b) can only be exercised by an application by the Director of Public Prosecutions, and that will cause considerable delay. I believe a little time will possibly be saved at the magistrates' Bench, but an awful lot of time will be wasted by going to Whitehall in the first instance. It seems to me that this is a wrong balance. It is not worth making the point now, but that is certainly not a satisfactory answer for me and I shall probably return to this matter at the next stage of the Bill. However, in the meantime I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 45 agreed to.

Lord McIntosh of Haringey moved Amendment No. 39A:

After Clause 45, insert the following new clause:

("Evidence of children on commission

  1. .—(1) Without prejudice to section 105 of the Magistrates' Courts Act 1980 (deposition of person dangerously ill) and sections 42 and 43 of the Children and Young Persons Act 1933 (deposition of child or young person where court appearance would involve serious danger to life or health), in those cases mentioned in section 32(2) of the Criminal Justice Act 1988 a court may appoint a commissioner to take the evidence of any child who has been lawfully required to give evidence as a witness if—
    1. (a) in proceedings on indictment, at any time before the oath is administered to the jury,
    2. (b) in summary trial, at any time before the first witness is sworn, or
    3. (c) in exceptional circumstances in either trial or indictment or in summary proceedings, during the course of the trial, application is made to the court in that regard; but to be so appointed a person must be, and for a period of five years have been, a member of the Bar, a solicitor or a justice of the peace.
  2. (2) Proceedings before a commissioner appointed under subsection (1) above shall be recorded by video recorder.
  3. (3)An accused shall not, except by leave of the commissioner, be present in the room where such proceedings are taking place but shall be entitled by such means as seem suitable to the commissioner to watch and hear the proceedings.").

The noble Lord said: In moving Amendment No. 39A I wish to speak also to Amendment No. 39B. These two amendments are concerned with the conditions under which children may give evidence to the courts. I confess immediately that the wording of Amendment No. 39A is lifted almost without change from the Prisoners and Criminal Proceedings (Scotland) Act 1993—that is, from Scottish law. We have changed the phrase "solemn proceedings" to "proceedings on indictment" but the purpose is very much the same.

What we are concerned with here is what is called evidence of children on commission, which means in common language evidence which children may give to commissioners. We envisage a situation where before a trial—if possible quite a long time before a trial— children should be able to give evidence to a commissioner, who could indeed be the trial judge, and this should be done in the presence of prosecuting and defending counsel in such a way as to avoid the difficulties which still exist when children at a trial have to give evidence by video link.

There has to be, of course, protection for the defendant. We envisage that the defendant should be able to see and hear the evidence by video link that is given when evidence is given in commission, and should be able to communicate with his counsel by electronic means in order that the counsel may be able to cross-examine the child who is giving evidence in this way.

What are the benefits of what is proposed here as compared with the provision which is already available for children giving evidence? First, even with the video link, giving evidence in the course of a trial must be the possible source of considerable stress to children. It is still in the context of court proceedings. Court proceedings can be terrifying for adults, but for children, and particularly young children, they can be even more terrifying. The fact that we have recently, and properly, introduced protection for children from confronting the person against whom they are giving evidence is good, but it is not good enough for the purpose.

Secondly, the benefit of the amendment would be that the evidence could be given, if necessary, some considerable time before the trial. There may be a number of issues to be tied up, including court time, before a slot can be found for the case to be prosecuted. Provided a commissioner is known and counsel on both sides are known it should be possible for evidence of children on commission to be given very much earlier than would otherwise be the case. That has the benefit that the children are less likely to suffer from loss of memory due to the time which has elapsed since the occurrence took place and also that they are less likely to suffer from accumulated fear and the denial of treatment which would otherwise be possible but is held up pending the evidence that they have to give in court. That is the second important argument in favour of these procedures.

Thirdly, it is necessary that the need for cross-examination should be maintained. The new clause provides for that.

I appreciate that the Government have undertaken inquiries into this issue under Professor Graham Davies and are expecting a report on the way in which children should give evidence, which may be available by early 1995. Even if that happens on time, and I have no reason to suppose that it will not, it means that legislation to bring it into effect could not be implemented until, say, 1996, in other words, a couple of years from now. Even if that were the case and losing two years were not serious enough, Professor Davies's inquiry does not cover very young children, who are an important part of the case for the amendment. Under those circumstances it would be very desirable for this change, which follows the changes which have already taken place, to be incorporated in this Bill rather than left for future legislation.

Amendment No. 39B, to which I am also speaking, is concerned with the video recording of testimony from child witnesses. It would allow discretion to trial judges to allow examination-in-chief about matters covered on the video tape. The problem with video tapes is that, first, the interrogation in the taped interview may be flawed and, secondly, it may be necessary for the prosecution to have an opportunity to refresh the child's memory. The amendment would provide a gentle introduction for the child to court proceedings. It would protect the objectivity of the courts without adding unnecessary and undesirable terror for the child witness.

I hope that the Committee will feel that both of the amendments, which are supported by the NSPCC, are friendly to the child witness and yet respectful of the need for justice in cases where child witnesses are required. I beg to move.

10.45 p.m.

Baroness Faithfull

I rise to support the noble Lord, Lord McIntosh, on this amendment. The proposal set out in the amendment was a recommendation of the Pigot Report, which was published some years ago. It was a great disappointment, to all of us that it was not implemented. As the noble Lord said, it is put forward by the NSPCC, and it is also supported by the Association of Directors of Social Services and the: probation service.

Perhaps we may consider the various members of the; family. A child who has allegedly been abused has to be interviewed. Any child, but in particular a young child., will forget exactly what happens over a period of time In a number of cases it is sometimes a year, 18 months; or even two years before that child's case is heard in court. I have taken such children to court. By that time they forget and give the wrong evidence, and in the end the court has no resort but to discharge the case for lack of proper evidence.

Those of us who have been social workers and have dealt with such children are in great difficulties about treating the child. If one has a child who has suffered grievously, in particular in cases of child sexual abuse, that child should be having psychiatric treatment, counselling and help. Because of the evidence with which one may be interfering, one is hesitant about undertaking that and the child does not receive the help that he or she should because one has to wait for the court report. The mother of the child is in a perpetual state of anguish and worry when the matter hangs over her for such a long period.

If the perpetrator is the father or a relative of the family—as he often is—and the evidence is not acceptable, the child refuses to give evidence, or changes his or her evidence over time because the court has taken so long to be convened, very often the perpetrator is found not guilty or the case discharged. If a man is found guilty of sexually abusing a child, he receives a two-year prison sentence. While in prison he is helped—admittedly not as much as he should because the probation officers do not have the time. Nevertheless he has been to prison. He has been found to be guilty. However, if the case is discharged, very often the perpetrator leaves the family, goes elsewhere, and continues with his practices with children (if it is a sexual abuse case).

I do not believe that this country yet fully recognises what a serious problem it is. For everyone's sake—the child, the mother, and the perpetrator—it is essential that the men appear before the court and, if guilty, are found guilty, and not discharged because their cases have not been proven.

I speak with great feeling on the issue. I have started a charity to help these men to be rehabilitated and possibly, in some cases, as Lady Justice Butler-Sloss said, to return them to their families. From the point of view of every member of the family, it is important that the noble Lord's amendment should be seriously considered by Her Majesty's Government.

Lord Ackner

I strongly support the amendment. It seeks merely to provide an option in the range of options which will enable, as the Pigot Committee recommend-ed, the whole of the child's evidence, where appropriate, to be taken in advance of trial. The amendment precisely mirrors Scottish legislation which was implemented on 1st January of this year. The irony is that when at the Report stage we sought the same power, the same option to operate in England, my noble and learned friend the Lord Chancellor was brought in to resist it. Following his successful resistance, the option is provided only for Scotland. It is an odd situation.

This is not a disrespectful reference to the area north of the Border, for which I have great affection and respect. But it is the wrong way round, in my submission, to seek to see how the system works in Scotland where the opportunity of applying the system is so much smaller than south of the Border, where the population is much greater. It is wrong, from that limited experience—which may or may not be relevant to the English problems—two-and-a-half years hence to decide that the particular provision should be extended to England. The period of delay is not justified nor is it appropriate to make an attempt to evaluate the situation on what must inevitably be a small sample. Accordingly, I support the amendment.

Lord Mottistone

I too wish to support the amendment, having been much involved in the earlier legislation to which the noble and learned Lord has just referred. We were trying then to persuade the Government to go much further with the Pigot report.

The key point which the noble Lord, Lord McIntosh, mentioned is one that has always struck me. It is that, properly used, the process enables justice to be more accurately applied. If children's evidence is long delayed or in any way hampered through not taking advantage of the earlier opportunities that the amendment would give, the evidence will not be available to ensure that there is justice both for the accused and for the victim. It seems to me strange that the Government have been so slow and were resistant at the earlier stage. It is even stranger, as the noble and learned Lord, Lord Ackner, said, that it has already been applied in Scotland—I am sure with success. I hope that with his connection with affairs in Scotland, my noble and learned friend will find that, whatever he is told by the Home Office, he can tell us that this will be actively pursued and I hope that it will apply in the Bill.

Lord Ackner

Perhaps the Committee will forgive me for rising again. I omitted to address myself to the second amendment, Amendment No. 39B, as I suspect the noble Lord, Lord Mottistone did.

Even with adults, it is normal to put the witness at ease by introducing him or her with some questions, however common the ground may be on the issue. Even in commercial cases, where the present procedure is to exchange proofs of evidence, the advocate nevertheless introduces the witness in order that he should be put at ease. Persons who have not given evidence in court do not realise the stress and strain that it involves. It must be even more so with a child. It must surely be right to enable the prosecution to ask a limited number of questions, with the leave of the judge, of course, merely to put the child at ease. It may be said, "That can be left to the judge". However, with all due respect to my brethren, judges differ—some are more sensitive with children than others. In any event, the judge is not presenting the case for the prosecution. It is best that he is kept out of the arena.

Then in addition there may be some matter which has not been as fully covered as it should be and which should be in a moderate degree developed by the examination in chief. The present position is far too inflexible. I fully understand that the last thing one wants is to run the risk of the child who has already given evidence on video being examined in a way that causes inconsistencies which are then exploited, understandably, by the defence. But that is really a process of putting the child, so far as one can, at ease, and of course it is always within the discretion of the trial judge. I am grateful for having an opportunity of adding those words to the second amendment.

11 p.m.

Baroness Mallalieu

I support both these amendments. To deal with the second one first, my experience in courts dealing with cases of this sort is that this amendment will do no more than ratify the existing practice, which is that when the child first appears on the video screen the judge will have some conversation with him or her to set her at ease. The video is then shown in the presence of the child. At the end of the showing of the video—again, in my personal experience—the judge will tend to say to prosecuting counsel: "Is there anything further that you want to ask?". I have certainly never heard any prosecuting counsel denied an opportunity to ask questions at that stage, and indeed have heard many take up the opportunity either to clarify matters or to ask about things which have not been covered. So it may be that these provisions are strictly necessary in order to make what is happening in practice the position in law as well.

I support as strongly as I can what the noble Baroness, Lady Faithfull, said about the need for child evidence to be given as near as possible to the point of the events. My only reservation in relation to the wording of this clause is that it confines itself to the court appearances where serious danger to the life or health of the child is likely to be an issue. I hope that that relates particularly to mental health. In the course of representing many defendants in cases involving child sexual abuse, and in the course of examination of social services files, which are often disclosed to the defence, it is a common pattern to see over and over again records in those files of the growing anxiety of the child and the family about the pending court case, and anxiety on the part of the social workers, who are anxious to begin treatment which may involve discussing the offence with a child, but feel unable to do so. Whether or not the complaint is a valid one, and perhaps even particularly in cases where the complaint is a false one, it is clearly necessary for social workers to involve themselves in steps which will lead to the child receiving whatever help is necessary and available. If the trauma of giving evidence can be got out of the way and that treatment can be begun as early as possible, it is in everybody's interests and is not in any way to the detriment of the defendant. I strongly support both these clauses.

Lord Rodger of Earlsferry

The noble and learned Lord, Lord Ackner, pointed unerringly to some of the ironies of the situation. The fact that I should respond, coming from a jurisdiction which has this particular provision on this particular matter, perhaps completes the circle of ironies to which the noble and learned Lord referred.

The Government are not convinced that this is the time for this particular matter to be brought forward. Any objective observer would agree that over the past few years there have been a considerable number of changes in the machinery for taking the evidence of children. I think all would agree that these changes have introduced a degree of flexibility which is welcome. I am not sure that they have all yet fully bedded down and that the working methods have settled in. It is for that reason that, as the noble Lord, Lord McIntosh, mentioned, the Government have commissioned research on this matter. We await the results of that research. It is in the light of that research that we shall want to consider what further steps would be appropriate.

I accept that this provision may indeed be one of the steps which could be introduced. As the Committee will perhaps be aware, the position is that at present we have a slight mismatch between Scotland and England. There are some things which are available in England which are not available in Scotland and vice versa.

Although I accept, and noble Lords would not expect me to think otherwise, that this provision can be useful, it would be wrong to think of it as in any sense a panacea. The noble and learned Lord, Lord Ackner, put it correctly when he said that it was one possible option to be used. While it has the advantages of which the Committee has spoken, it also has at any rate potential disadvantages and difficulties. As yet, we have not had sufficient experience to be able to say whether they will prove to be real disadvantages or how real the problems will prove to be. It is a little difficult because it can lead to repeated cross-examinations of the child. For example, if it is found during the stage of the trial or shortly before that a particular matter which had not been explored with the child in the evidence when taken on commission, or a new issue, has arisen, one must under this procedure go back and have further evidence taken on commission. If that occurs during the trial it can lead to adjournments. That certainly is the position as the mechanism would work in Scotland. So there are at least potential problems with it. We are not quite sure yet how useful it will prove to be. It is certainly one of a number of options.

For the kind of reason that I explained, I do not feel able to say to the Committee that we can accept the amendment at this stage.

I turn to the other amendment. I was very interested in what the noble Baroness said about the way in which the provision works in practice in the courts. I would wish to reflect a little further on that matter. Everybody who has had anything to do with witnesses in a court of any kind, but in particular with children, would accept that it is a stressful experience for any witness. It is to be expected that some form of introductory questioning would take place, whether by the judge or whoever, to settle down the witness. We are all familiar with the fact that judges try to do that to some extent.

The provision for the matter to go straight into defence cross-examination was put in on the basis that one did not wish to prolong the proceedings unnecessarily and the evidence of the child was to be taken from the video link. But when that matter was debated in Parliament, it was the Government's clear view that examination could recur when matters had not been adequately dealt with in the video tape.

I understand that there have been cases in which judges have taken an opposite view, although I am not aware of any Court of Appeal decision which has ruled that such questioning is not permissible. As I said, we would expect judges to take some steps to settle down the witness and would expect the child to be relaxed in that way. Certainly, we should not want any situation to develop in which the pre-recorded video became simply the introduction to prolonged questioning by the prosecution.

Having heard what the noble Baroness said about the practice as it exists in the courts at present, I personally should like to take the matter away and think about it a little further.

Lord Ackner

Before the noble and learned Lord the Lord Advocate sits down, perhaps I may remind him that he referred to repeated cross-examination. If the evidence on commission is completed and thereafter the defence wishes to raise another matter, if the whole of that is reserved to the trial and requires the concurrence of the trial judge, there will be no repeated cross-examination. Any further cross-examination will be limited to one event, that event taking place subject to the concurrence of the trial judge at the trial. Does not that overcome the problem raised by the noble and learned Lord?

Lord Rodger of Earlsferry

My understanding is that it is possible—at least in Scotland—for a further application to be made before the trial. One of the advantages perceived of this procedure, and as has been spoken to, is that the earlier it can take place the greater the chance of relieving the stress of the child. But if it is done too early there is a risk that in the course of preparation the defence may alight upon something which they wish to clarify.

Rather than keeping it to the trial and then causing an adjournment at that stage, a further application could be made. If something further came out at the trial, there would be a risk—I cannot say that it would happen frequently—that at that stage further cross-examination would be necessary. That would place further stress on the child and in that situation would cause the further difficulty of a possible adjournment during the trial.

Lord Ackner

I do not see where the adjournment arises. The evidence on commission having been taken, counsel or solicitor for the defence says that there is a new feature which should be explored. The judge says, "Very well. I will grant that application" and the further cross-examination will then take place at the trial. There is no need for an adjournment. It is arranged that the cross-examination will be conducted when the trial takes place. If before trial further material emerges, the whole matter is taken at the trial in one go and not by a series of repeated returns to evidence on commission. That is the point that I seek to make.

If, unfortunately, the defence have not concluded all the cross-examination they wish, subject to the concurrence of the judge any further cross-examination is adjourned to the trial which will not involve the trial being adjourned. It will become part and parcel of the activity at the trial. That is my point.

Lord Rodger of Earlsferry

I certainly do not wish to prolong this debate unduly. My point is—and I am sure the noble and learned Lord will know from his own experience at trials—that on issues which were thought to be clear sometimes an odd quirk which had not seemed important at the time emerges during the trial. The whole point of the provision is that the child should not need to be near the court. Therefore, in that situation, it is envisaged—if such an application had to be made during a trial because of something which arose at that stage—there would potentially be room for an adjournment. That is the situation I had in mind.

Baroness Faithfull

Before the noble and learned Lord sits down, perhaps I can say that no mention has been made of how long it is before a trial that a young child has to give evidence. Can he say what happens in Scotland? How close to the case being brought to court is the evidence on commission carried out? To question a young child of five, six, eight or 10, two years after the offence is almost impossible. The noble and learned Lord made no mention of the number of men who are discharged through lack of evidence because the child is unable to give proper evidence after so long a passage of time.

Lord Rodger of Earlsferry

One of the advantages of the existing system in England of video evidence is that that evidence is captured at the earliest possible stage. In Scotland, for this kind of commission evidence, the application is made only after the indictment has been served. It is therefore within a month or so of the actual trial. How long that takes place after the offence has been committed will depend on how quickly after the offence being committed the matter has come to the attention of the authorities. Certainly, in Scotland the trial has to be held in any event within 12 months of the commencement of proceedings; and if the man is in custody, within 110 days of him being taken into custody. So the application would be made within that timescale. But how long that will be after the offence has been committed depends on how soon after the offence has been committed the matter is drawn to the attention of the authorities.

11.15 p.m.

Lord McIntosh of Haringey

I confess that I do not find the Lord Advocate's arguments as convincing as they often are. The risk of a trial being adjourned for further evidence would in no way be increased by the provision in the new clause. On the contrary, it ought to be reduced, because having the evidence taken in commission earlier than the trial has two kinds of benefit. The first benefit is to the child in that there is less delay in terms of being withheld from effective psychological or psychiatric treatment, if that is necessary. The second benefit is to the court and to the course of justice in that the child's memory is likely to be fresher and the evidence given by the child better for the purpose of the trial. Therefore, there would surely be less chance of something new coming out at the trial if the original evidence was better. In any case, if a new matter has to be resolved, can it not be resolved by a further commission rather than by bringing the child to court after the original commission?

I do not find any of the noble and learned Lord's arguments convincing and I do not really see, at the end of this interesting debate, why children in England and Wales are to be denied the opportunities which have been made available in Scotland. I earn my living from doing research and evaluation, largely for government departments and agencies. I am the last person to say that we should be making policy decisions before the evidence is available, but I suggest that in this case, although Professor Graham Davies has been commissioned to do research, the amount of evidence that he can bring to bear, bearing in mind that he was not commissioned to look at the evidence from very young children, is limited and that the delay which would be involved if we lost this legislative opportunity, which would be of the order of two years, is very serious indeed.

Unless something has come out since the Scottish legislation came into force on 1st January this year which has led the Government to have serious doubts as to the effectiveness of the Scottish legislation—I have not heard any such suggestion—we would be very unwise to lose the opportunity of legislating in this Bill. It is after a quarter past eleven at night. Clearly, it is not a matter which it would be appropriate to press to a Division, but it is certainly a matter to which, on the advice of all those organisations which have been proposing the amendment, we may wish to return at a later stage. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 39B not moved.

] On Question, Whether Clause 46 shall stand part of the Bill?

Lord Simon of Glaisdale

Perhaps I may ask the noble Earl the Deputy Leader of the House how long he proposes to continue with the Bill, to what stage in the Bill, and to what hour. I would supplement this by asking him whether he regards these parts of the Bill as trivialities merely to be rattled through—with speeches from all parts of the Chamber putting forward criticisms, the Minister in reply stonewalling and then the proposer of the amendment saying, "At this hour it is inappropriate to divide the Committee".

With great respect, I ask the noble Earl whether he at least regards your Lordships' House as a revising Chamber. Does he think that it can possibly operate as a revising Chamber conducted in this way, with a number of noble Lords listening to the debates in this House who are far outnumbered by the appropriately called "payroll vote" of unfortunate Ministers kept in their rooms upstairs in order to vote down any amendment which might be temerously put forward?

Earl Ferrers

The noble and learned Lord is very perceptive of the position of Ministers who, as he says, are kept in their rooms late at night. Whether they are likely to vote down any amendment which is pressed is another matter. As the noble and learned Lord has observed, not many amendments are pressed at this hour of night for the reasons which he has given. Therefore, what he calls the "payroll vote" could be described as sitting in their rooms to no effect. Nevertheless, they sit in their rooms.

I understand the noble and learned Lord's anxiety about this. This is not a unique position, but one in which the House frequently finds itself. I agree that it is not desirable, but the business of your Lordships' House and the way in which it conducts itself is a matter for your Lordships. If your Lordships tend to spend longer on some parts of a Bill than others might prefer, that obviously protracts the business of the House. There are various agreements as to how far we should go. When the noble and learned Lord asks how far we propose to go, the answer is to the end of Clause 54. He asks how long that will be. That depends on how long your Lordships intend speaking on these matters.

It is a pity when these matters arise late at night. Inevitably, that will be so. The business of the House is entirely for your Lordships and if some wish to speak longer on some amendments rather than others, the penalty has to be paid by others of your Lordships.

Lord Simon of Glaisdale

The noble Earl said that it is by no means an unusual situation, and that is absolutely true. But that hardly excuses what is happening tonight and what has happened on other occasions. This is a particularly important Bill. Would the noble Earl say at what hour he expects, even with the most reasonable expedition, that we are likely to conclude Clause 54?

Earl Ferrers

That is a completely impossible question for me to answer. If your Lordships would be good enough not to speak too long on any amendment the business will be over fairly quickly. However, if your Lordships desire to speak at length then we shall be here rather longer. The matter is entirely for your Lordships.

Lord Simon of Glaisdale

Does the noble Earl really believe that it is consonant with the duty of this House to refrain from speaking to amendments which call for debate?

Earl Ferrers

I was not suggesting that. The noble; and learned Lord has himself taken up several minutes by discussing how long we should discuss this matter. If we wish to conclude quickly we had better get on and not spend too long arguing about how long we shall spend doing it.

Lord Wigoder

May we spend another 30 seconds on this matter? Leaving aside the question of Ministers; on the payroll, would the noble Earl seriously contend that any onlooker of your Lordships' Committee and its proceedings—I know that we are not supposed to see; them from here—could possibly think that this Committee has been doing justice to these important amendments in the past half-an-hour or so?

Earl Ferrers

I do not believe that it is up to me or anyone else to consider what onlookers think. They see what they see. Your Lordships' business is to try to deal with matters in front of the Committee. It so happens; that very often although there may not be many noble Lords present in the Chamber, those who are interested are those who are present. It is quite right that those who are interested should ask questions of the Government: and quite correct that the Government should give those answers. Just because the Benches are not full of the payroll vote, as the noble Lord would say, or, as I might say, full of his Back-Benchers who were here earlier but have now mysteriously gone away, does not mean that the matter is not properly addressed.

Clause 46 agreed to.

Lord McIntosh of Haringey moved Amendment: No. 40:

After Clause 46, insert the following new clause: ( "Admissibility of confession evidence . For section 76 of the Police and Criminal Evidence Act 1984 (admissibility of confession evidence) there shall by substituted the following section. Admissibility of confession evidence.

  1. "76.—(1) Subject to the following subsections, in any proceedings a confession made by an accused person may be given in evidence against him in so far as it is relevant to any matter in issue in the proceedings.
  2. (2) No confession alleged to have been made by an accused person shall be admissible against that person in any proceedings unless—
    1. (a) the confession has been made or adopted in the presence of a solicitor; and
    2. (b) the prosecution adduces independent evidence which is capable of implicating the accused person in the offence of which he is charged.
  3. (3) If, in any proceedings where the prosecution proposes to give in evidence a confession made by an accused person which is not excluded by reason of subsection (2) above, it is represented to the court that the confession was or may have been obtained—
    1. (a) by oppression of the person who made it; or
    2. (b) in consequence of anything said or done, or for any other reason which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in consequence thereof; or
    3. (c) in circumstances which failed to conform to the requirements of paragraphs 5 (right not to be held incommunicado), 6 (right to legal advice) and 10 (cautions) of Code C of the Codes of Practice issued under section 66 above, the court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained as aforesaid.
  4. (4) In any proceedings where the prosecution proposes to give in evidence a confession made by an accused person which is not excluded by reason of subsection (2) above, the court may of its own motion require the prosecution, as a condition of allowing it to do so, to prove that the confession was not obtained as mentioned in subsection (3) above.
  5. (5) Where a confession is inadmissible at the trial of the accused either because it is excluded by reason of subsection (2) above or is ruled by the court to be inadmissible under subsection (3) above, any evidence obtained as a result of the accused's confession shall not be admitted in evidence against him.
  6. (6) In this section—

oppression" includes torture, inhuman or degrading treatment, and the use or threat of violence (whether or not amounting to torture); and independent evidence" means evidence which in itself implicates the accused by showing or tending to show guilt of the offence charged." ").

The noble Lord said: I rather think that the noble and learned Lord, Lord Simon, would say that the arguments that he has put forward about the importance of this amendment at any rate can be measured in spades or, as he would probably say, afortiori compared with the last amendment, because the issue that is addressed in Amendment No. 40, which is the admissibility of confession evidence, is of the utmost importance. Indeed, in view of the exchanges of the last few minutes, I wondered whether the Minister would care to consider the possibility that we might resume the House now, not get as far as we had intended - it is now nearly 11.30 p.m. - and resume on this amendment tomorrow afternoon. I know that I agreed to a different timetable, but it would not worry me at all if the House were to resume now and we were to consider this tomorrow afternoon.

Earl Ferrers

One might say that the noble Lord, Lord McIntosh, bounces. We had an agreement, to which I understand that he was a party, that we should continue to Amendment No. 54. But now, because the noble and learned Lord, Lord Simon, got excited about how long we have spent discussing this and then spent a good deal of time discussing why we should go on for so long but has now unfortunately disappeared—I think that he quite understandably wishes to retire elsewhere —the noble Lord, Lord McIntosh, says, "Let us stop now". Obviously, what happens is up to the Committee, but if we have made arrangements to continue to Clause 54, I should have thought that the proper thing to do would be to continue to that point.

Lord Wigoder

I support the noble Lord, Lord McIntosh. We are now considering an amendment which is of crucial and critical importance to the administration of justice, and I venture to suggest that it is apparent that the House in its present form cannot do justice to it.

Lord Harmar-Nicholls

One presumes that the agreements that have been entered into were entered into in the best interests of the House and Parliament as a whole. I think that if an arrangement has been made, all sides should keep to it; otherwise we get nowhere very quickly.

Lord McIntosh of Haringey

I proposed the timetable of business. It is no secret that the Opposition propose the timetable of business on Bills. I was not seeking to overturn unilaterally an agreement to which I was a party; I was merely suggesting, in view of the evident feeling in the Committee - admittedly, the two noble and learned Lords who felt it most strongly have now left—that it might not be a bad idea if, by mutual agreement, we broke the original agreement. That would not do any harm to the business tomorrow and would help us now; but if that is not acceptable to the Government, I shall plough on.

Baroness Faithfull

We are wasting parliamentary time because we have to withdraw amendments at this hour of the night because we cannot divide.

11.30 p.m.

Lord McIntosh of Haringey

'Try me, Sir Arthur", is what Conan Doyle once said. I have been known to divide the House at 1.15 a.m.

Amendment No. 40 proposes a new clause, to be inserted after Clause 46, which is concerned with the admissibility of confession evidence. It arises from evidence which has been given to the Royal Commission on Criminal Justice. Indeed, it is the successor to considerable arguments over many years about the nature of confession evidence -arguments which were central to the reasons why the then Conservative Home Secretary set up the Royal Commission in the first place. I shall summarise briefly our basic dissatisfaction with the admissibility of confession evidence in order only to obtain a response from the Government. Clearly, as we have said, the subject deserves the attention of a much fuller Chamber.

As we said on Second Reading and in the debate last October on the Royal Commission, we would prefer the corroboration of confession evidence to be along the lines of Scottish law rather than English law. Scottish law provides, first, that there must be evidence that the crime has actually taken place. That may not be as obvious as it seems. Secondly, there must be facts available from a source other than the confession which would incriminate the suspect.

We are proposing in an amendment to the Police and Criminal Evidence Act 1984 that no confession shall be admissible unless: the confession has been made or adopted in the presence of a solicitor; and … the prosecution adduces independent evidence which is capable of implicating the accused person in the offence of which he is charged". We are enforcing the Police and Criminal Evidence Act conditions of interview and interrogation and applying them to the most critical aspect of interrogation, which is the interrogation that results in a confession. On Second Reading I reminded the House of the recent case in the north east of England. There the judge ruled out a confession that had been obtained after hours and days of questioning of a clearly inadequate young man accused of abducting, assaulting and killing a young girl. As the young man said afterwards, "They asked me whether I did it 249 times and on the 250th time I agreed". In other words, he simply could not stand the pressure that was being put on him.

Admittedly in that case the judge found that the PACE rules were not fully obeyed. However, one can imagine conditions in which the PACE rules are obeyed yet the confession is nevertheless as unsatisfactory as that confession was recognised to be. Many of the cases which gave rise to the Royal Commission were similar.

Although the Police and Criminal Evidence Act has been in force for nearly 10 years, everyone concerned from the police outwards will recognise that it is enforced patchily and that the attitudes of the police towards it are not uniform throughout the country. There are many cases of interrogation which do not conform to the PACE conditions either in the spirit or the letter.

We believe that it is necessary to have both, not either, of two conditions. First, there should be the presence of a solicitor when the confession is made or adopted, and that should be under PACE conditions. Secondly, the prosecution should adduce independent evidence which implicates the accused person.

One could make speeches on this point which last several hours. For many months and years there have been seminars and debates on the issue in the legal profession and outside. It is one of the fundamental questions with which the Royal Commission is concerned and with which this Bill ought to have been concerned. The fact that the Bill is not adequately concerned with the validity of confessions and the conditions under which confessions may be admissible in evidence is one of the most serious criticisms of it that there could be. I beg to move.

Lord Wigoder

With very great hesitation, I venture to differ from the noble Lord, Lord McIntosh of Haringey, on this amendment. My doubts arise really as regards the new Section 76(2) (b). I suppose that it is a matter of (2) (b) or not (2) (b), that is the question!

Subsection (2) (b) provides that the prosecution must adduce independent evidence capable of implicating the accused person in the offence; in other words, it provides, by statute, that before a confession can be admitted there must be corroboration. I have doubts about the wisdom of that matter. I am fully aware that there have been many cases of uncorroborated confessions where horrendous miscarriages of justice have arisen. Equally, I am aware of the fact that in far more cases defendants have made confessions of which there is no corroboration. They have quite happily stood up in the magistrates' court or at the Crown Court and have pleaded guilty. They have instructed solicitors or counsel to act for them and they have gone off happily to serve their sentence. If subsection (2) (b) were in force, all those people would now be at liberty and would never have been charged in the first place.

I should very much prefer the position in which the judge is fully aware of the dangers of acting on an uncorroborated confession; looks carefully to see whether there is supporting evidence; and if there is no supporting evidence he warns the jury very carefully of the position and informs the members that only if they are absolutely convinced that the confession is true should it be acted upon. I believe that providing statutory corroboration as proposed in the amendment will do more harm than good.

Baroness Mallalieu

This amendment was a recommendation by the Independent Civil Liberty Panel on Criminal Justice on which I sat last year in May together with the former chairman of the Bar, Anthony Scrivener, and the chairman of the Civil Liberties Trust, Peter Thornton, both of whom are leading counsel.

At the outset, I shared the reservations, expressed by the noble Lord, Lord Wigoder, as to how one could ensure that false confessions did not translate; themselves into convictions which were unjustified. I confess that at the outset I was attracted by the argument that he has just advanced; namely, that a warning should be given to a jury rather than making a requirement as part of the law that there should be corroborating evidence.

It is late and therefore I shall draw attention to just one part of the material placed before us at our hearings which particularly impressed me. We heard evidence from many sources including the police, universities, the legal profession and others.

In particular, we heard from a Dr. Gudjonsson, who has been working in recent years studying people who have been proved subsequently to have made false confessions. He has done extensive work with a Dr. James Mackeith, who is a consultant psychiatrist of the Bethlem Royal Hospital.

Before I heard about his report, my immediate reaction would have been that anyone who falsely confessed to a crime that he had not committed must be off his head. Dr. Gudjonsson has found that many people make false confessions for a variety of other reasons which had not, I confess, occurred to me before.

First, he found that people make confessions voluntarily and without any external pressure because they have a desire either for publicity or for notoriety or a desire to protect the real criminal, or sometimes from a desire to relieve feelings of guilt that they may have about something that they feel that they have done wrong, correctly or otherwise.

As an example, he pointed to the 200 people in the United States who had confessed voluntarily to the Lindbergh kidnapping in 1932.

Then there are those who make confessions for what they perceive as some kind of immediate gain: for example, to bring an end to pressure from interviewing officers; being allowed to go home from the police station; or the dropping of a more serious charge. In those cases, the person who confesses does not believe that he has committed the crime—indeed, he knows that the truth is that he has not—and he may think that the truth will eventually be revealed. In court cases, researchers found that that was the most common type of false confession.

Then there are those who have what Dr. Gudjonsson termed a "memory distrust syndrome" where they become temporarily persuaded that they have commit-ted the crime because they begin to distrust their own recollection of events. The doctor cited the case of a man called Peter Riley. He had come home to find the body of his mother. She had been murdered. The police had used a polygraph test on him. That failed and, using that failure, he was persuaded that he was guilty and had confessed. It was two years later that independent evidence cleared him.

Dr. Gudjonsson told us that he did not believe that such confessions could ever arise from a single cause; nor did he believe that they could ever be completely eliminated. However, it was abundantly clear from his evidence, and that of those engaged in the field with him, that false confessions are not confined to vulnerable people, to young people, to mentally-ill people, to people of low intelligence or even to those suffering from temporary disabilities. That leaves aside other categories—categories about which there has been much publicity and which are, perhaps, better known —such as the fabricated confession of which notable examples were revealed by use of the ESDA testing in recent years, and the final and, arguably, the smallest category; namely, the confession which is a mistake, either in the recording or in the form of a genuine misunderstanding between the interviewer and the suspect.

As a result of hearing about such evidence and hearing evidence from other witnesses who appeared before us, together with considering the documents that we received, we felt that the warnings indicated by the noble Lord, Lord Wigoder, could not provide sufficient protection. I appreciate what the noble Lord said. His anxieties are that uncorroborated confessions do, on occasion, form the basis of valid convictions. However, I am troubled that some of those cases to which he referred may well fall into the category described by Dr. Gudjonsson as ones where a confession is made which was not in fact based on truth.

A number of recommendations were made, which I shall not mention in detail now because they are not strictly relevant to the amendment and the hour is late; but they include, for example, that a qualified solicitor should be present when interviews take place if at all possible, and that those who go to police stations acting on behalf of solicitors should receive proper training, as, indeed, should police officers in the way in which police interviews are conducted. For all those reasons, I support the amendment. In view of those additional safeguards, we felt that the provisions contained in the amendment were necessary to guard against those who do, unhappily, confess to offences which they have not committed.

Lord Hylton

As a non-legal person and largely as a result of prison visiting, I have over the past 10 years been involved in quite a number of both proven cases of miscarriages of justice and alleged ones in England and in Northern Ireland. I have written numerous letters to many Home Secretaries, and I have also discussed the matter previously with the the noble and learned Lord the present Lord Chancellor.

For all those reasons, I welcome the amendment. I do not know whether its content is 100 per cent. right; and, indeed, I shall not go into that aspect of the matter. I followed very carefully what the noble Baroness, Lady Mallalieu, said about the two doctors who made special studies of false confessions, and the types of people who are most likely, for one reason or another, to make such confessions. I urge the Government to study the published works of those two doctors and, if possible, have consultations with them before the Bill finally becomes law. I am convinced that we need much better safeguards against miscarriages of justice than we have at present.

11.45 p.m.

Lord Rodger of Earlsferry

It has been said on several occasions already that this amendment raises a lot of extremely important issues and I certainly concur with that. Even the spread of debate which we have had has indicated a divergence of view as to exactly where the balance most appropriately lies in the system in England and Wales on this matter.

The noble Lord, Lord McIntosh, mentioned the matter of corroboration. Although it does not work in Scotland in exactly the way that this clause would envisage, certainly in that system it has a role to play. But that matter was of course most carefully investigated by the Royal Commission and its conclusion was that it was not appropriate, for various reasons, to introduce that particular provision into English law. Again the proposed clause as it stands on the Marshalled List contains a number of provisions which the Royal Commission considered carefully and which—for reasons which it laid down—it did not feel able to accept and did not think would help. The most obvious point it made was that there may indeed be situations where a defendant declines to have a solicitor present in a situation where he nonetheless adheres to the confession which he has made. In that situation, that confession would, under this provision, be ruled out, and it is not obvious that that would be an appropriate situation.

The particular provision in subsection (5)—which is some sort of an embodiment of the principle of the foot of the poison tree—would seem to go very far because it would mean, for example, that, in a situation where all that had happened was that the man had declined to have a solicitor present but had given information which had led, for example, to the identification of two perfectly good witnesses who could speak prima facie, the evidence of those witnesses would on that basis not be available to the prosecution and could not be put before the court because it would result from a confession which was excluded under subsection (2).

Lord McIntosh of Haringey

I am grateful to the noble and learned Lord the Lord Advocate. It does not mean that the prosecution could not proceed: it would mean that the confession could not form part of the case.

Lord Rodger of Earlsferry

Subsection (5) of the proposed new clause states: any evidence obtained as a result of the accused's confession shall not be admitted in evidence against him". As I read that, it is intended to exclude evidence which is obtained as a result of the confession. I may be wrong but that is how I read it. It is certainly the kind of provision which can be found in certain states in the United States of America, for example, but in the particular formulation it would seem to me to go too far.

The debate, although short, has raised a number of issues and the Government have wished to reflect further on the matters relating to confessions because they are obviously very important, and in particular to consider the recommendations of the Royal Commission. The Government are still considering these recommendations. These are difficult matters, as can be seen, and no view has yet been reached but we certainly do not want—there is always a risk in these things—to complicate the situation by complicated rules of evidence.

Even under the present law, it is the case that confession evidence may have to be rejected in spite of the fact that it appears actually to embody the truth— and that even in the most serious cases. That indicates that already the law holds the rights of suspects very dear, and that provision is already made to make sure the police act properly. But on the whole we wish to think further on the matter, particularly in the light of the Royal Commission's recommendations, and to come forward with our conclusions in due course.

Lord Mclntosh of Haringey

Of course I am interested in what the noble and learned Lord the Lord Advocate says about wishing to think further and perhaps if, as usual, we have talks between now and a later stage this might be one of the items on the agenda. Certainly I would be prepared to talk to the noble and learned Lord the Lord Advocate about this issue. I insist that, on the point he last made, on which I intervened, we are not saying at all that the prosecution should not proceed. We say only that the confession obtained under those circumstances should not form part of the prosecution.

As a result of this discussion I am assured in one respect, and I should like to be reassured. The availability of corroborative evidence is increasing all the time as forensic science improves. For example, the likelihood of there being DNA evidence is greater than it was. That type of corroborative evidence, although it will never solve the problem could go some way towards reducing it.

There are ways in which I am still as unhappy and dismayed by the Government's reaction to the amendment as I ever was. I recall almost: the last case of my late father-in-law, Tom Sargant. That was the case of Mrs. Livesey, who was convicted in Preston of the murder of her 14 year-old son. She was convicted after many hours of interrogation in which she finally said, "Oh, I don't know. If you tell me so often that I did it I suppose I must have done it". That was thought to be a confession. There was no other evidence available against her. Indeed, evidence came forward later such as the fact that this 14 year-old boy had been tied with naval knots which she could not possibly have known and that there were matches and cigarettes of several different brands, none of which she smoked, in the room when she returned from an evening out and, as she claimed, found him dead. All of those matters were well rehearsed in the press and the Court of Appeal. She gave: way after long interrogation and was convicted only on that minimal confession. She immediately retracted the confession and ever afterwards, even at the expense of parole, insisted on her innocence and has continued to do so ever since she was released at the end of her sentence. That sort of problem will not be relieved by leaving the law relating to corroboration as it is.

As everyone who has taken part in this short debate recognises, this is one of the fundamental issues concerning miscarriages of justice. It is what the Bill ought to be concerned with, but it is not. It is clearly an issue to which we shall have to return not only at later stages of the Bill but in later legislative activity in this Chamber.

Solely on the grounds that it would be impossible to secure a proper conviction of the Government at this time of night, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clauses 47 and 48 agreed to.

(Amendments Nos. 41 and 42 not moved.)

Clause 49 (Powers of police to take Intimate body samples):

(Amendment No. 43 not moved.)

Clause 49 agreed to.

Clause 50 (Powers of police to take non-intimate body samples):

(Amendment No. 44 not moved.)

Lord Mottistone moved Amendment No. 45:

Page 35, line 46, at end insert: ("( ) the non-intimate sample is taken by or in the presence of a medical officer").

The noble Lord said: I should like to make this point very briefly. The Magistrates' Association has told me that taking samples where consent has not been given is undignified and that it can, and does, lead to violence. There are also potential health risks. The association has therefore recommended that in the event of a prisoner objecting to giving saliva samples and mouth swabs the sample should be taken by or in the presence of a medical officer; hence my amendment. I beg to move.

Earl Ferrers

Non-intimate samples are precisely those which do not require specialist or invasive procedures in order to obtain them. The definitions are set out in Clause 53(3). They include hair but not pubic hair, nail cuttings or scrapings, impressions of the feet or other parts of the body, and saliva or a swab from a mouth. A mouth swab simply involves rubbing cotton wool against the inside of a lip.

It has been possible for some time for the police in Northern Ireland to take mouth swabs without consent and we understand that that has worked satisfactorily. In the Government's view those are all procedures which can be adequately performed by a trained police officer. They are not fundamentally different from taking fingerprints without consent, for which powers have existed for many years without difficulty.

I see no logic in my noble friend's proposition that the medical officer would need to attend only when consent was refused and that he need not himself take the sample. Either his skills are required in all circumstances or, I would suggest, not at all. It is not the job of doctors to act as independent observers of police procedures. The Committee might be tempted to think that there is no harm in having a medical officer present even if it is not strictly necessary. But I think that that would be a mistake. Each medical call-out costs the police a considerable sum of money and that is money which could otherwise be spent in fighting crime. It also causes delay.

I remind my noble friend that there are many circumstances in which police officers are obliged to use force. But the law is clear that the force involved must be reasonable to the circumstances and not excessive. The use of excessive force to obtain evidence from samples could render the evidence inadmissible under Section 78 of the Police and Criminal Evidence Act 1984.

For those reasons, I suggest to my noble friend that his amendment is unnecessary.

Lord Mottistone

I am most grateful to my noble friend for his full explanation. I shall study it with care and may return to the issue at the next stage. At this stage, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 45A to 45D not moved. ]

Clause 50 agreed to.

Clause 51 [Fingerprints and samples: supplementary provisions]:

[Amendments Nos. 45E to 45M not moved.]

Clause 51 agreed to.

Clause 52 agreed to.

Clause 53 [Samples: intimate and non-intimate etc.]:

[Amendments Nos. 45N to 45R not moved.]

Clause 53 agreed to.

Clause 54 [Extension of powers to search persons' mouths]:

[Amendment No. 45S not moved. ]

Clause 54 agreed to.

Lord Annaly

I beg to move that the House do now resume.

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

House resumed.

11.58 p.m.