§ 10.55 p.m.
§ Baroness Denton of Wakefield rose to move, That the draft order laid before the House on 9th February be approved.
§ The noble Baroness said: My Lords, I beg to move that the draft order laid before the House on 9th February 1995 be approved. Although it is the last of the three orders before the House tonight, that by no means ranks its importance. It is a most important order for a section of society for whom we must always express special concern and carry out special responsibilities.
§ This order will replicate provisions already enacted in England and Wales. It contains a short but valuable package of measures to help reduce the trauma of children giving evidence in cases relating to violent or sexual offences.
§ The provisions on children's evidence replicate those in the Criminal Justice Act 1991, as amended by the Criminal Justice and Public Order Act 1994 following some adverse comments in the English courts.
§ Article 3 abolishes the competency tests which are applied to prospective child witnesses in criminal proceedings. It removes the present distinction between the way in which children of different ages give evidence and provides that all children under 14 shall give evidence unsworn.
§ Article 4, together with Schedule 1, provides for committal proceedings to be bypassed in cases of sexual offences or cases involving violence or cruelty. It will apply where the witness is a child and the Director of Public Prosecutions is of the opinion both that the evidence is sufficient for the defendant to be committed 386 for trial and that, in order to avoid prejudicing the welfare of the child, the case should proceed without delay in the Crown Court.
§ The provisions of Article 5 lie at the very heart of the order. They enable a video-recording of an interview with a child witness to relevant offences to be used in trials at the Crown Court or a juvenile court in place of the child's evidence-in-chief. The child must, however, be available for cross-examination via live television link. Any rules of court requiring disclosure of the circumstances in which the recording was made must also have been properly complied with. The article also precludes any person who is charged with a sexual or violent offence from personally cross-examining a witness who is either a victim of or witness to such an offence.
§ The Government recognise that the key to the successful implementation of this legislation is full and appropriate training of staff who will be involved in the prosecution of offenders and the care of child witnesses. The multi-disciplinary approach required has been recognised for some time by the relevant agencies in Northern Ireland and staff training is at an advanced stage. The training, and the associated guidance to staff, will of course take full account of practitioners' experience with the corresponding legislation in England and Wales.
§ I hope that noble Lords will welcome this order, which helps to shorten and simplify procedures for some of the most vulnerable witnesses who come before the courts. I commend it to the House.
§ Moved, That the draft order laid before the House on 9th February be approved.—(Baroness Denton of Wakefield.)
§ 11 p.m.
§ Baroness Faithfull
My Lords, I thank my noble friend for her explanation of the Children's Evidence (Northern Ireland) Order 1995. There are certain matters in the order which I do not fully understand and I hope that my noble friend will forgive me for asking six brief questions.
First, I know that since 1993 there have been discussions in the Province concerning the subject of children's evidence in cases of alleged child sexual abuse. I also know that a working party has been considering the order in the Province. However, I am informed that on that group there was no representative of the British Association of Social Workers or the Association of Directors of Social Services. There was only one representative from the voluntary sector —from the NSPCC.
In part, the order will be implemented by social workers. Why were they not represented on that working group? They could have contributed to and learnt a great deal from participation in such a group. The Reverend Martin Smyth made reference to that when the order was before the Fifth Standing Committee on Statutory Instruments on 28th February 1995 (col. 6).
Secondly, would it not have been wise to defer the order until the Government have the results of research which is to be published on 26th May? That research 387 has been carried out by Professor Graham Davis of Leicester University and was commissioned by the Lord Chancellor. The research concerns the evidence and cross-examination of alleged child victims of sexual abuse through television link and video. That method has worked satisfactorily in some areas of England and Wales, but there have been difficulties. Surely the Lord Chancellor would not have commissioned research if the system had been consistently well-administered throughout the country? There have been difficulties in different parts of the country.
If the research recommends changes in practice, should not those recommendations, if accepted, have been incorporated in this order? Mr. Paul Murphy, a Member in another place, made the same comment on this matter when it was before the Fifth Standing Committee.
Thirdly, I seek further information on Article 5. I agree with television link and video recordings but would not this order have provided a wonderful opportunity to implement the recommendations made in the Pigot Report? That recommended that a video recording should be made before a locotar of a hearing attended by the alleged sexually abused child, counsel for the prosecution and counsel for the defence, with the accused in another room, able to communicate with his barrister; and that the video would be shown at the trial, with the child present. That would greatly reduce the child's trauma, partly because the case would come before the locotar at an early stage and the child is much more likely to remember the events at that time rather than a year later.
The recommendation has many other advantages. Would not this order have been a wonderful opportunity to implement the Pigot recommendation, because many people in the country agree that that is a very good, sound recommendation? There is no similar provision in Scotland but there can be no real comparison because the penal system in Scotland is quite different, with its panels and sheriff courts.
Fourthly, do I understand that the order is to be implemented in June 1995? If so, there will not be sufficient time to train all those involved; namely, the judiciary, the officers of the court and social workers. Does the Judicial Studies Board operate in the Province? Will there be training for the judiciary?
Fifthly, can my noble friend the Minister say what is the estimated cost for implementing the order? We so often pass legislation in your Lordships' House—and, indeed, in the other place—but we do not provide the resources for its administration. In the first instance, the legislation now before us will take much money because much money and many resources will be required for the training at all levels of the work regarding administration of the order.
Finally, does my noble friend the Minister agree that there should be someone outside the system—that is, apart from social workers, the police and the judiciary—to whom the child can look for help, support and interest? I suggest that there should be someone quite objective who has not been involved in the case at all; 388 for example, a guardian ad litem. Under the order, would it be considered appropriate in the Province for such a guardian to be appointed to each child?
Child sexual abuse in childhood leaves a person throughout life with an element of unhappiness. The hurt that court proceedings can cause to a child is quite incredible. I have dealt with many such children and I know that appearing in court is a trauma which is hard to overcome, certainly as regards cross-examination. Therefore, whatever happens, it is a difficult area. It is difficult to meet the welfare of a child and it is difficult to ensure that justice is done to the alleged perpetrator. However, I am sure that we shall work out a system in time that will meet both those pressing needs. I support the order, but I wonder whether there ought to be some variations.
§ 11.7 p.m.
§ Lord Holme of Cheltenham
My Lords, I thank the Minister for her introduction of the order. I must also say what a privilege it is to follow the noble Baroness, Lady Faithfull, with all her experience and sympathy of such very difficult cases. I have but one simple point to make, but a further point arises out of the remarks made by the noble Baroness which I should like to pursue.
While I am generally supportive of the order, I have a concern about the issue of impending research. I understand that Mr. John Spencer of Selwyn College, Cambridge, is about to publish a thesis on the matter in which he calls for children to be "warmed up" before they give evidence. That is another report which is due to be published. One wonders why the Government could not have waited for all the research to be gathered together. It is possible that we are dealing with an area in which there will always be new research; but it is important to get it right.
I turn now to the other point that I wish to raise. All abuse of children, whether physical violence or sexual abuse, is so peculiarly horrible that all civilised people's instincts react against it. However, there have been enough cases in recent years and months to make us aware that we must also be careful as regards the rights of a defendant. Children's timescales and imaginations are different from adults. It is possible that adults can lead children towards recollections and memories at the end of an interrogation that they may not have had at the beginning of the process. Some of that may be right and proper. Indeed, it may be the careful and cautious solicitation from a child who is unhappy of what the real truth was, or, as we have seen in some highly-publicised cases recently—notably, in the Orkneys and Shetlands—it can be the very reverse. It can be someone with an agenda of his or her own seeking to persuade the child that something happened when, perhaps, it did not.
The point that I should like to press upon the Minister is whether we can arrive at a better definition of what constitutes a memory which is admissible in court. In recent history, Northern Ireland has had very unhappy and highly-publicised cases of child abuse. Indeed, there is one at the moment. These are matters where we have to strike a careful balance between, on the one hand, the proper treatment of a child who may already have been abused, may already be unhappy and may be further 389 traumatised by the way its evidence is taken, versus the extreme importance of not turning solicitous care for the child into leading it towards conclusions that suit some other adult's agenda. Although I do not pretend to understand these matters with anything like the expertise of the noble Baroness, Lady Faithfull, I hope that the Government, in responding on this order and accepting that we support it generally, will try to understand that, if anything, public concern is growing about whether the balance is being properly struck.
§ 11.10 p.m.
§ Lord Prys-Davies
My Lords, I also wish to thank the Minister for explaining the order. I have also listened with anxiety to the contribution of the noble Baroness, Lady Faithfull, because she speaks with great authority in this area of policy. I believe that her piercing questions and observations need to be answered.
The order itself is relatively short—six articles. I believe that probably five of the articles are welcomed as they stand, but there is disappointment and concern that Article 5 has not been extended at least to cover the video recording of the cross-examination of the child victim or the child witness of the alleged assault when giving evidence in a criminal trial. We wonder why that has been restricted to the child's evidence-in-chief.
The Minister said that the order applies in Northern Ireland the relevant provisions of the 1991 Act as amended. But as the noble Baroness, Lady Faithfull, indicated and underlined, much has been learnt in England and Wales, certainly since 1991, and the evidence shows that the provisions of the 1991 Act, as amended, have been less effective than had been hoped for. I am told that an enormous number of videos have been taken but not used. I believe that that needs to be explained. I note the cautious words of the noble Lord, Lord Holme, and I understand his cautious approach, but there is a feeling that not only have too many offenders in child abuse cases escaped conviction but that too many have even avoided prosecution in the first place.
One has read and studied the speech of the Minister who is in charge of the measure in the Commons, but he has not explained why all the lessons which have arisen since 1991 have not been learnt and have not been incorporated in the order. I am sure that if this legislation had been enacted by a Bill rather than by an Order in Council, there would be an opportunity for the House to seek to widen the scope of Article 5 in order to implement the full recommendations of the Pigot Report. I notice that the director of Leicestershire social services made the point that until such time as those recommendations are on the statute book the scales will remain too firmly tipped in favour of defendants and against the abused children. That must be a matter of great concern.
I read the opening and winding up speeches of the Minister of State when the order was discussed in the Fifth Standing Committee on 28th February. It seemed to me that he was under great pressure from the Members to explain the omissions. Perhaps I may summarise the position. He wound up the debate by 390 expressing the hope that the other recommendations—the noble Baroness, Lady Faithfull, referred to them—could be brought on stream in the light of legislative and appropriate experience and, if necessary, by using guidelines and amending this order in future. I found no sense of urgency in those words. Surely abused children deserve better.
I should be grateful if the Minister would take note of the concerns expressed, certainly in this Chamber tonight, and convey them to the Minister who has charge of the appropriate department. Nevertheless, having said that, of course one welcomes the order so far as it goes, but there is still a long way to go.
§ 11.16 p.m.
§ Baroness Denton of Wakefield
My Lords, I thank noble Lords for the concerns expressed and the issues raised on the order. Perhaps I may say, first, that I shall most certainly convey those concerns to my honourable friend, but I shall try to deal with some of them at this stage.
My noble friend Lady Faithfull is indeed a good and true friend of children. We welcome the constant interest in Northern Ireland that she shows. I know that social workers in the Province greatly appreciate her knowledge which she shares so generously with them. If, as she suggested, we are to work out solutions to the problems which we face in this area, many of those solutions will be due to the work of my noble friend.
The issue was raised of the involvement of social workers in the consultation process. A working group was set up representing the various departments of the Government, the social security boards and the NSPCC. It was established by the RUC to examine staff training needs and to put programmes in place. It was considered appropriate to leave those arrangements to the persons qualified to set them up, and they drew on the experience of practitioners in England and Wales. I understand that social workers were not directly included as such. I hasten to assure my noble friend that that was not from oversight but in the expectation that they would be represented by staff from the area boards. In Northern Ireland we have the advantage of integrated health and social services. The social workers to be involved in the case of child witnesses will be thoroughly trained and their views taken into account.
There has been a keen desire to see this legislation come to Northern Ireland. Provisions have been eagerly awaited both by the police and by child welfare agencies because—the noble Lord, Lord Holme of Cheltenham, drew attention to the fact—the record of the Province relating to sexual abuse of children is not one of which any single person could be proud.
We are aware of all the research which is being undertaken. A seminar held in Northern Ireland on 17th June on the video recording of children's evidence heard from researchers and academics throughout Great Britain that it is not the legislation in England and Wales that has presented difficulties, because the legislation is permissive in setting out the conditions under which video recordings may be admitted in court. An early draft of the research by the University of Leicester has 391 been seen by Home Office officials and did not recommend any legislative changes. But it is considered that any recommendations for change will relate to procedural matters. I am delighted to reassure my noble friend that if such suggestions are accepted they can be incorporated in non-statutory guidelines for interviewing child witnesses.
I said that training was well under way and I believe that the earliest commencement date for the order would be in June. However, I again assure my noble friend that commencement would not be sought until a core of trained staff was in place.
My noble friend raised the issue of the Judicial Studies Board in Northern Ireland. Such a board has recently been established and I have no doubt whatever that it will wish to involve itself in the preparations for the implementation of the arrangements. We look forward to that happening.
The cost of the legislation, when fully implemented, will lead to an increase of £0.6 million in capital and £0.15 million in the current public expenditure. The cost will cover buildings, video equipment and training. Again, I assure noble Lords that this is not an area in which the Government would try to exercise cuts. The responsibility to children is much too important.
The decision on the guardian ad litem would be for the courts in Northern Ireland, and I shall continue to take a personal interest in the matter. The noble Lord, Lord Holme, mentioned an important issue: the balance between the protection of the child and ensuring that justice is done. The balance is a key matter. We must recognise that the provisions for by-passing committal proceedings and fast tracking are aimed at bringing cases of that nature to court as quickly as possible so that the child can remember clearly the events that have taken place and not at a distance. That is, of course, a problem for witnesses of all ages. Such evidence as is available to the Government does not suggest that children's memories are any less reliable than those of adults; if anything, the contrary is considered to be the case. The reliability of such evidence must always be a 392 matter for the court to consider in individual cases. I am convinced that no one involved in such matters has anything but a full commitment to their responsibilities.
I know that the House has enormous respect for the Pigot Report, as we have heard on previous occasions. We considered that it was important to implement the principal recommendation that children should be able to give evidence by video recordings. It is not easy for Northern Ireland to go ahead at any great speed because the courts look to case law from England and Wales and we should learn from decisions that have been made here. So we would not look to introduce radically different arrangements for the giving of evidence. Practitioners in Northern Ireland, with their relatively limited resources, have always found it extremely valuable to be able to build on experience in England and Wales on the operation of legislation. I can assure noble Lords that we do that and will continue to do it.
As was drawn to our attention by the noble Lord, Lord Prys-Davies, my honourable friend in another place pointed out that the Government have not ruled out the possibility of implementing other Pigot recommendations at a later date. But that will be done in the light of experience with the present provision. I hope that in this area we are never ever satisfied that we have found the solution and that we shall continuously examine to see whether there are better ways of dealing with the problem. I can assure the noble Lord that the sense of urgency will be applied, but not at a speed which may mean that we put these young people at risk and in difficult circumstances where justice could be prejudiced.
This is an important order for Northern Ireland. It is important for the children of Northern Ireland. I hear the concerns that noble Lords have expressed, and I shall share those with my colleagues. But taking into account those concerns, and assuring your Lordships that we will handle this matter with the greatest of care and caution, I commend this order to the House.
§ On Question, Motion agreed to.
§ House adjourned at twenty-six minutes past eleven o'clock.