Criminal Procedure and Investigations Bill [H.L.]

HL Deb 05 February 1996 vol 569 cc73-112

Consideration of amendments on Report resumed.

Lord McIntosh of Haringey moved Amendment No. 91: Before Clause 37, insert the following new clause—

TRANSFER FOR TRIAL

(".—(1) Where a magistrates' court inquires into an offence as examining justice in accordance with section 6 of the Magistrates' Court Act 1980 (discharge or committal for trial) the court—

1. (a) shall consider only written evidence when deciding under subsection (1) of that section whether to commit the accused for trial by jury; and
2. (b) may, at the request of the legal representative of the accused, commit the accused for trial under subsection (2) of that section without the accused being present in court.

(2) In section 6(1) of the Magistrates' Court Act 1980, for the word "evidence" where it first occurs there shall be substituted the words "written evidence".

(3) Section 102(4) of the Magistrates' Court Act 1980 (which requires a person to attend before a court to give evidence) shall cease to have effect.

(4) Section 44 and Schedule 4 to the Criminal Justice and Public Order Act 1994 (which provide for transfer for trial proceedings in place of committal proceedings) shall cease to have effect.

(5) In this section, "legal representative" mean an authorised advocate or authorised litigator as defined) in section 119(1) of the Courts and Legal Services Act 1990 and "written evidence" means evidence tendered in writing in accordance with section 102 of the Magistrates Courts Act 1980."").

The noble Lord said: My Lords, in moving Amendment No. 91 I shall speak also to Amendments Nos. 93, 94 and 122, which have the minor additional effect of removing two clauses and a schedule from the Bill.

The amendments deal with the issue of transfer for trial from the magistrates' court to the Crown Court. It is an issue which has a history of aborted reform over a considerable period. I understand that on no fewer than three occasions the Government have tried to come forward with reform and on each occasion reform has been delayed.

The Royal Commission on Criminal Justice—the Runciman Commission—recommended in respect of full committals from the magistrates' court, in their present form, that where the defendant makes a submission of no case it is considered on the basis of the papers rather than in person and that the defence is able to advance oral argument in support of a submission but that witnesses should not be called.

Those who are deeply concerned with these matters; namely, the Law Society, the Justices' Clerks' Society, the Association of Magisterial Officers and the Chief Metropolitan Stipendiary Magistrate, broadly support the Royal Commission's recommendations. They had a meeting with the Home Secretary last Tuesday which led them to feel that it was necessary to air the matter again today.

The Government's proposals, which were introduced in amendments at Committee stage rather than in the Bill as originally published, replace all committals with a transfer for trial scheme. The object was to spare witnesses having to give evidence twice—once at committal and again at the Crown Court trial—and to improve the efficiency of the courts. We agree that the first of those objectives is met by the Government's amendments, but we do not think that the second objective is met. That is the reason for the amendment and the consequential amendments.

We agree that the number of committals will be reduced by the Government's proposals. However, there are not very many committals at present. Old-style committals make up only 7 per cent. of all committals, and witnesses give evidence only in some of those. The Government propose to make a radical change to make all committals unnecessary, in order to produce benefits which will in any event apply only to a small proportion of cases. It is our view that the Royal Commission's recommendations could be achieved by Amendment No. 91, which is in effect an amendment to the Magistrates' Court Act 1980. Under the amendment a court would consider only written evidence when deciding whether to commit an accused for trial by jury under subsection (1) and could, at the request of the legal representative of the accused, commit the accused for trial under subsection (2) without the accused being in court.

The reasons that we are worried about the Government's proposals are, first, that there will be delays. The Government's proposals introduce for the first time new time limits which are supposed to be a discipline. Between the mode of trial and the first hearing guidelines exist as regards eight weeks in bail cases and six weeks in custody cases. They are met in most cases. However, the problem is that the proposals are likely to bring delays. Experience is that time limits imposed in this way are used fully. In other words, cases are not made until the last minute. In order to provide a workable scheme with statutory time limits, the Government have had to extend the existing time limits to 12 weeks, an increase of 50 per cent. in bail cases and 100 per cent. in custody cases. We do not believe that the Government's proposals will speed up cases coming to trial.

Secondly, we think that the Government's proposals are inflexible. They are claimed to give greater control of the pre-trial process. However, we believe that they are inflexible and will take control away from the courts. If the prosecutor fails to serve notice of the case within the prescribed period—let us remember that the prescribed period is required because the CPS has a record of taking a long time to bring a case—the court has to discharge the accused regardless of the seriousness of the offence and the strength of the prosecution evidence. That must happen under the Government's proposals. I suggest that there would be a justified public outcry.

There is no provision in the Government's proposals for the courts to require the prosecution to serve notice of its case in a shorter time than the prescribed period. The proposals take no account of whether the accused is in custody or on bail, whether the case is straightforward or complex or whether the evidence is already available or still being gathered. At present courts have some control over how long the prosecution will take and are able to press the prosecution to serve its evidence sooner if that is possible. If the prosecution do not serve a formal piece of evidence in its notice of case, that cannot be put right before the magistrates consider the evidence, and the accused will have to be discharged.

Where defendants elect for Crown Court trial but agree to summary trial after they have seen the prosecution evidence, the government scheme does not allow the accused to change their mind in cases of summary trial. Cases will be sent to the Crown Court unnecessarily.

The conclusion is that the scheme will cost more. The savings which the Minister stated at Committee would result from this scheme will be non-existent. The reverse may even take place. Where the accused is in custody there will be a larger remand prison population and greater costs for the Prison Service. There will have to be new administrative systems, new training given in their use, and new costs for the magistrates' courts, the Crown Prosecution Service and defence solicitors.

The Law Society and those concerned with magistrates' courts have always been in favour of reform. They have always wanted the same objectives that the Government have sought. But they simply do not believe that the wholesale scrapping of the existing procedures is necessary. It suggests that the more modest measures proposed in Amendment No. 91 would be better. I beg to move.

7.30 p.m.

Baroness Blatch

My Lords, I recognise that there is concern among practitioners about the new transfer procedure. That is perhaps understandable since transfer for trial represents a major change to practice and procedure in the magistrates' courts, but it is a change which I believe to be both necessary and overdue. Practitioners and commentators may be having difficulties in coming to terms with the principle and practical application of transfer because of the understandable tendency to try to equate it with the existing system. It is essential, though, to recognise that transfer is a completely new system for dealing with pre-trial procedure in the magistrates' courts. When Parliament decided to abolish the committal system, the central aim was to introduce an entirely new mechanism in its place, to move from a mainly court-based system to a mainly administrative one. This will bring with it significant savings, both in terms of time and cost, as well as greatly improving the efficiency of the process.

The proposed alternative set out in the amendment tabled by the noble Lord, Lord McIntosh, and the noble Lord, Lord Williams, is deceptively simple in that it appears, on the face of it, not to involve wide changes to existing legislation and practice. But it misses completely the fundamental point about the new transfer procedure which is that, in uncontested cases, as soon as the prosecution has served notice of its case, the case will automatically and immediately be transferred to the Crown Court. In 1994, over 97,000 cases—some 93 per cent. of the total—fell into that category. In such cases, there will be no need for any court hearing, or for any consideration of the evidence. The procedure will be a simple one without elaborate paperwork. Savings will arise for the courts because of this streamlining and for the legal aid bill, because it will not be necessary for the parties' representatives to attend court.

Turning to the specific details of the noble Lords' amendment, the first part—it has the effect of limiting evidence to written statements—is similar to what is proposed with regard to an application for dismissal under the transfer procedure, but with one vital difference. Under transfer arrangements, hearings where the prosecution and defence representatives are actively involved will be the exception. Most cases will be dealt with entirely on paper, with no need even for the parties to attend. Under the noble Lords' proposal, by contrast, there would be a hearing attended by all the parties in every such case. Oral submissions by the parties, but not oral evidence, would routinely be allowed.

The second part of the noble Lords' amendment, which deals with uncontested cases, still envisages a court-based procedure in such cases, although it removes the requirement on the parties to attend. Valuable court time would be taken up to no clear purpose. As I have said, the transfer procedure by contrast provides for uncontested cases (the vast majority of all cases) to be transferred automatically for trial at Crown Court.

The noble Lords' proposal would thus not deliver the efficiency savings flowing from the transfer procedure. Nor under their proposal would there be the discipline of time limits, which the Royal Commission specifically recommended. Some have argued that the prescribed time limits under transfer arrangements will result in -time delays, rather than in driving forward the proceedings as quickly as possible. I find it difficult to see why this should be so. The fact of the matter is that, under the existing committal system, the 42-day pre-trial issues guideline for service of the prosecution case appears to be met in only a relatively few cases. Although no comprehensive figures are available, sampling suggests that as many as 75 per cent. of cases exceed that timescale. The prescribed period of 70 days for service of notice of the prosecution case under the transfer procedure reflects that reality. It does not change it. The Government remain committed to the PTI guidelines and expect the police and the CPS to continue working to the 42-day period in the majority of cases. The 70-day period is a maximum limit. It does not mean that where cases can he processed more quickly they will not be. The 70-day period is also avowedly an initial limit. That is to say, my right honourable and learned friend the Attorney-General and my right honourable friend the Home Secretary have agreed that the position should be monitored carefully. They are both determined that the time limit should be progressively reduced. The longer prescribed period initially will mean that in the majority of cases there will be no need to apply for extensions, thereby avoiding unnecessary bureaucracy and additional burdens on the courts or on any of the parties concerned.

Implementation of the new procedure has been delayed a number of times in recognition of practitioners' concerns which the Government are addressing in these amendments. Working together with practitioners, we will be able to produce an efficient procedure to act as a filter to stop weak cases from getting to the Crown Court, and avoids the problems associated with committals. There can be no real benefits from replacing committals with a procedure which would take up similar amounts of time and resources, as proposed under the terms of the noble Lords' amendment.

I therefore hope that the noble Lord will withdraw his amendment. I should like if I may to draw another point to noble Lords' attention. The Government recognise and share practitioners' concerns that the transfer should be workable and effective. This is, of course, our principal aim in making amendments to the transfer provisions. The views of practitioners on the operational aspects of the procedure are clearly of invaluable assistance in achieving this aim. We are very grateful for their detailed comments on the mechanics of the procedure, and we are currently considering these in full.

As a result of the consultation which is still in progress, we wish to make some further technical refinements to the amendments which were tabled at Committee stage and clarification of the provisions contained in the Magistrates' Courts Act 1980, as inserted by the Criminal Justice and Public Order Act 1994. I am sure that noble Lords will agree that it is essential that we should take the views of practitioners into account so as to ensure a system that operates effectively. I am sorry that that means that we are not in a position to table the amendments at Report as originally planned, but I hope that, in the light of the reason I have given—that is consultation with those who will be affected by it—the delay in order to get the legislation right is justified.

Lord McIntosh of Haringey

My Lords, the Minister will understand that we sometimes feel that we are aiming at a moving target. After all, the Bill as originally introduced did not include any of the new provisions about transfer for trial. We only saw them at the Committee stage and we have to respond to them in the time between Committee and Report stages. It is longer than usual and we do the best we can in the circumstances. The Law Society and others were unable to obtain a meeting with the Home Secretary until last Tuesday and we have had to do the best we could after that. We now hear that further amendments will be introduced, presumably at Third Reading or in another place.

Baroness Blatch

My Lords, with the leave of the House, I cannot be precise about that. I shall keep the noble Lord informed and, if the amendments are not ready for Third Reading, they will have to be addressed in another place.

Lord McIntosh of Haringey

My Lords, I am grateful and recognise that any amendments would be introduced as a result of consultation with the practitioners in the field. However, the Minister will understand that I am not happy with the situation. I do not feel that we have had the opportunity that we need. However, in order to allow the consultation to continue, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 37 [Transfer for Trial]:

Baroness Blatch moved Amendment No. 92: Page 21, line 21, leave out ("to this Act").

The noble Baroness said: My Lords, Amendment No. 92 is a technical amendment which removes some unnecessary words from Clause 37. I beg to move.

On Question, amendment agreed to.

[Amendment No. 93 not moved.]

Clause 38 [Provisions connected with transfer for trial]:

[Amendment No. 94 not moved.]

Clause 40 [Either way offences: accused's intention as to plea]:

[Amendment No. 95 not moved.]

7.45 p.m.

Clause 44 [Acquittals tainted by intimidation etc.]:

Lord Ackner moved Amendment No. 96: Page 26, line 37, after ("commit") insert (", or committing,").

The noble and learned Lord said: My Lords, this amendment relates to Clause 44, regarding acquittals tainted by intimidation etc. The clause is new so far as forensic philosophy is concerned, because it sets aside an acquittal where the person has achieved that acquittal as a result of being convicted of an administration of justice offence.

The clause initially centred around the intimidation of witnesses, jurors and others. I suggested at Committee stage that, if one were to concern oneself with tainted acquittals, then perjury ought to feature. The Government kindly took up that suggestion and at Committee stage provided an amendment which introduced in subsection (6) an offence involving the administration of justice, and under (c) there is, an offence of aiding, abetting, counselling, procuring, suborning or inciting another person to commit an offence under section 1 of the Perjury Act 1911".

The lacuna—and it is a remarkable one—in what the Government propose is this. Under Clause 44 (1)(a), a person who is the acquitted person can be the same as the person in (b) who has been convicted of an administration of justice offence. One and the same person can be the subject of the acquittal tainted by his intimidation etc. of witnesses. One would have expected the same consistency to have followed once one introduced perjury as a category of tainted acquittal. The acquittal could be obtained by the perjury of the acquitted person himself or by his having aided, abetted, counselled etc.

For some reason which I find incomprehensible, the arch villain, the person who actually commits perjury, can hang on to his acquittal, it is not tainted. He will lose his acquittal if he has not himself committed perjury but has aided, abetted, counselled, procured, suborned or incited another person to commit such an offence. The provision contains the clear lacuna which we have sought to fill by adding the words "or committing" after "commit" so as to bring within the category of tainted acquittals those that have been achieved by the acquitted person's own perjury. That makes sense. As it stands at the moment, if he himself commits the perjury, he is allowed to retain what to all the world is as tainted as, if not more tainted than, an acquittal provided for in subsection 6(c). I beg to move.

Lord Williams of Mostyn

My Lords, I am chided by my noble friend Lord McIntosh, who accused me on the last occasion of confessing that I had an open mind. I have to plead guilty. Having listened to the noble and learned Lord, I find that it is plain that there is a gap here. Vicarious liability as a concept is well known in civil law and to a limited extent in criminal law, but I have never understood the concept of vicarious liability to displace personal individual liability in criminal law. The whole of the scheme depends on double jeopardy to an extent, but as I observed on the last occasion, if I had a brother—and I do—and I get him or suborn him for a consideration (since we are both Welsh!)to carry out the offence described, he is guilty and I am not. There must be something wrong there somewhere.

The Lord Advocate (Lord Mackay of Drumadoon)

My Lords, I oppose the amendment. Having had the privilege of prosecuting many cases, some of which, I regret to say, resulted in acquittals, I can readily understand the sympathy which lies behind the amendment. Any prosecutor whose efforts have resulted in an acquittal brought about by evidence he believes to have been perjured evidence would wish to have the opportunity of a second bite at the cherry.

However, having thought about the matter carefully since it was first raised in Committee, the Government have reached the firm view that the amendment takes the new matter too far. As the noble and learned Lord, Lord Ackner, said, this is a new matter so far as forensic philosophy is concerned, to set aside an acquittal. Clearly the view is that the limited basis on which the Bill proceeds at the moment is as far as it would be appropriate to go. It is suggested that there is a lacuna and that as presently framed the Bill is wrong.

There is a clear distinction to be drawn between overt acts which positively interfere with the course of justice in one way or another, whether in relation to witnesses, jurors, subornation of perjury, etc., and the act of committing perjury itself. In many cases where acquittals result, perjured evidence is given. Sometimes it is given by witnesses giving evidence on behalf of the prosecution, who may be minded to assist the defendant as far as possible; in other instances the perjured evidence is given by the defendant; and in yet other cases by some witness called on behalf of the defendant. If perjury has been committed, it is always open to prosecute the perjurer for the perjured evidence he gave.

The amendment would take matters further. It would make a further inroad into the finality of criminal proceedings, which is an important principle. I accept that it has been departed from by the clause as presently framed. However, the amendment would make a far greater inroad than the Government feel is appropriate at the present time. For those reasons, while to some extent my heart sympathises with the amendment moved by the noble and learned Lord, Lord Ackner, my head is very firmly against it and I invite the House to resist it.

Lord Williams of Mostyn

My Lords, before the noble and learned Lord sits down, is he able to assist us on this question? Is there any other circumstance known to the criminal law, on either side of the Border that separates and joins us, where it is an offence to aid, abet, counsel, procure, suborn or incite, but not an offence to commit the substantive offence?

Lord Mackay of Drumadoon

My Lords, in those terms, off the top of my head, I am not quite sure that the noble Lord is correct. However, we are not concentrating on the offence that the individual has committed, but on the possible effect, an acquittal already determined by a jury. As I said earlier, Clause 44(6) concentrates upon the overt acts of individuals: whether they are perverting the course of justice, committing an offence under the 1994 Act or are guilty of an offence of aiding, abetting, counselling or procuring. Those offences can be committed only when some third party interferes with the evidence or deliberations of somebody already involved in a criminal trial. That is a clear distinction that can be drawn in deciding where one draws the line in introducing serious inroads into the finality of criminal proceedings, which is a very important part of our criminal justice system.

Were this proposal to be introduced, it would undoubtedly protract proceedings in many cases. While there may be a limited number of cases where it is possible to establish that a part of subsection (6) can be made out, there are many, many more where perjury could be established. That is why I urge the House to resist the amendment.

Lord Ackner

My Lords, before the noble and learned Lord sits down, will he explain why that differentiation has not been drawn in subsection (6)(b), but only in (6)(c)? It has been accepted that (6)(b) involves, or can involve, the very person who has been acquitted; but under (6)(c)that is not to be the case. There must be some reason for the differentiation between (b) and (c).

Lord Mackay of Drumadoon

My Lords, I hesitate to disagree with my noble and learned friend but, in my construction of subsection (6)(c) as presently framed, it could be the defendant who was guilty of the offence of aiding, abetting, counselling, procuring, suborning or inciting another person. I do not see the distinction between (6)(b) and (6)(c) as currently drafted.

Lord Williams of Mostyn

My Lords, before the noble and learned Lord the Lord Advocate sits down, may I repeat the question of the noble and learned Lord, Lord Ackner, in respect of (6)(a)? The defendant could have done that.

Lord Mackay of Drumadoon

My Lords, he could indeed have done that. But in doing that he would have been guilty of an overt act outwith, or beyond, the giving of his evidence in the trial on the charge upon which he had originally been acquitted. Again, there is a distinction to be drawn where there is the giving of perjured evidence by an individual—which anyone with experience of criminal trials recognises occurs from time to time, and which is suspected by, let us say, unhappy prosecutors of occurring very frequently. That is a valid distinction and one that falls to be drawn from the situation set out in subsections (6)(a), (6)(b) and (6)(c) as to whether the defendant or some associate of the defendant requires some actings beyond the giving of the perjured evidence itself.

Clearly, assuming that the Bill becomes law in the terms in which it is presently framed, experience of the use of this section will be obtained. In the fullness of time there may be some scope for taking the matter further. The Government, having considered the matter very carefully—

Lord McIntosh of Haringey

My Lords, I beg the noble and learned Lord's pardon. I was remarking on the "if pressed" bit.

Lord Mackay of Drumadoon

My Lords, that reminds me. Because of my regretted absence earlier in giving a statement to a committee of the other place—in Inverness of all places!—I was not able to be present earlier, for which I apologise, and I have not yet read the part of the brief that says, "if pressed".

The Earl of Courtown

My Lords, perhaps I may remind noble Lords that this is Report stage. Apart from the mover, everybody else has just one crack of the whip.

Lord Ackner

My Lords, the observations of the noble and learned Lord the Lord Advocate remind me of a forensic story I heard. A very large Canadian QC was dining with an equally large Canadian, who was no longer a QC but who had just become a judge. The bill for the meal arrived, and the QC who was still a QC moved forward and took hold of the bill. The recently appointed judge put his great hand on top of the QC's hand and said: "Tainted, but it tain't enough". That seems to sum up exactly the submission that we have heard in this case. It is clearly tainted by the ex hypothesi forgery of the acquitted person. I can think of no better stimulus for dividing the House than to be told that I have the noble and learned Lord's heart on my side. To have broken through that granite reinforcement fills me with so much enthusiasm that I shall invite the decision of the House.

7.58 p.m.

On Question, Whether the said amendment (No. 96) shall be agreed to?

Their Lordships divided: Contents, 42; Not-Contents, 63.

Division No. 5
CONTENTS
Ackner, L [Teller.]	Hollis of Heigham, B.
Acton, L	Jeger, B.
Addington, L.	Jenkins of Putney, L.
Archer of Sandwell, L.	Judd, L.
Birk, B.	Kilbracken, L.
Blackstone, B.	Longford, E.
Borrie, L.	McCarthy, L.
Clinton-Davis, L.	McIntosh of Haringey, L.
Craigavon, V.	Mason of Barnsley, L
David, B.	Morris of Castle Morris, L [Teller.]
Dean of Thornton-le-Fylde, B.
Desai, L.	Nicol, B.
Donoughue, L.	Richard, L.
Dormand of Easington, L.	Rodgers of Quarry Bank, L
Dubs, L.	Strabolgi, L.
Falkender, B.	Taylor of Gryfe, L.
Farrington of Ribbleton, B.	Templeman, L.
Fisher of Rednal, B.	Tordoff, L
Gladwin of Clee, L.	Turner of Camden, B.
Graham of Edmonton, L.	White, B.
Hamwee, B.	Williams of Mostyn, L.
	Winston, L.

NOT-CONTENTS
Addison, V.	Cranborne, V. [Lord Privy Seal.]
Aldington, L.	Cumberlege, B.
Ampthill, L	Dean of Harptree, L.
Archer of Weston-Super-Mare, L	Denham, L.
Beloff, L.	Denton of Wakefield, B.
Blaker, L.	Goschen, V.
Blatch, B.	Harmar-Nicholls, L
Blyth, L	Harmsworth, L.
Brentford, V.	HolmPatrick, L.
Bridgman, V.	Inglewood, L.
Brougham and Vaux, L	Jenkin of Roding, L.
Burnham, L.	Kimball, L.
Caithness, E	Lane of Horsell, L.
Carnock, L	Lindsey and Abingdon, E.
Chesham, L. [Teller.]	Long, V.
Clanwilliam, E	Lucas, L.
Clark of Kempston, L.	Lucas of Chilworth, L.
Courtown, E.	Lyell, L.
Craigmyle, L.	Lytton, E.

Mackay of Ardbrecknish, L	Rennell, L
Mackay of Clashfern, L. [Lord Chancellor.]	Shrewsbury, E
	Skelmersdale, L.
Mackay of Drumadoon, L.	Skidelsky, L
Macleod of Borve, B.	Stockton, E.
Marlesford, L.	Strathclyde, L. [Teller]
Massereene and Ferrard, V.	Swinton, E.
Miller of Hendon, B.	Thomas of Gwydir, L.
Monteagle of Brandon, L.	Torrington, V.
Northesk, E.	Trumpington, B.
O'Cathain, B.	Vivian, L.
Peyton of Yeovil, L.	Wakeham, L.
Reay, L.	Wynford, L.

Resolved in the negative, and amendment disagreed to accordingly.

8.6 p.m.

Clause 47 [Tainted acquittals: supplementary]:

Lord Mackay of Drumadoon moved Amendment No. 97:

Page 28, line 19, leave out ("the granting of a certificate") and insert ("a certification").

The noble and learned Lord said: My Lords, this is a minor amendment to improve the drafting of Clause 47 of the Bill. Clause 47 itself sets out amendments to the Offences Against the Person Act 1861 and the Contempt of Court Act 1981 which are consequential upon the provisions of Clauses 44 to 46, dealing with retrials following acquittals tainted by intimidation. One of the requirements for seeking a retrial is that the court before which a person is convicted of an intimidation offence must certify that it appears to the court that there is a real possibility that, but for the interference or intimidation, the acquitted person would not have been acquitted. That does not actually involve the granting of a certificate, as is implied by the current text of Clause 47(4). It is more accurate to refer to it as a process of certification, which is what this amendment achieves. I beg to move.

On Question, amendment agreed to.

Clause 48 [Restriction on reporting of certain assertions]:

Baroness Blatch moved Amendment No. 98:

Page 29, line 2, leave out subsection (6) and insert— ("(6) Section (Restriction on reporting of assertions) has effect where a court makes an order under subsection (7) or (8).").

The noble Baroness said: My Lords, in moving this amendment I shall speak also to Amendments Nos. 99, 102, 103, 104, 106 and 107.

These amendments extend to Great Britain, rather than just England and Wales, the prohibition on reporting derogatory assertions which are the subject of a restriction order made by a court in England and Wales in line with the other reporting restrictions in the Bill.

The first amendment removes the existing subsection (6) of Clause 48, which specifies that the reporting restrictions apply to publications and broadcasts in England and Wales. It is replaced by a new subsection that explains that the provisions of the new clause inserted after Clause 48 will have effect where the court makes an interim or final restriction order. The second amendment removes subsections (9) and (10). The text of these subsections is incorporated into one new clause (referred to below) which has the effect of extending the prohibition on reporting to Scotland.

The effect of the new clause inserted after Clause 48 is that, where an order preventing the publication or broadcasting of a derogatory assertion is made, it will prohibit reporting in Great Britain. In addition to extending the prohibition to Scotland, the new clause reproduces and replaces the effect of subsections (6), (9) and (10) of the current Clause 48.

The third and fourth amendments to Clause 49, and the fifth and sixth amendments to Clause 50, are technical amendments which translate the cross-referencing of the provisions of these clauses into references to the new clause after Clause 48 in consequence of the redrafting of the provisions. I beg to move.

On Question, amendment agreed to.

Baroness Blatch moved Amendment No. 99:

Page 29, line 23, leave out subsections (9) and (10).

On Question, amendment agreed to.

Baroness Blatch moved Amendment No. 100:

Page 29, line 44, leave out ("(4)(a)") and insert ("(2)(a)").

The noble Baroness said: My Lords, these are technical and consequential amendments to Clauses 48 and 50. They are necessary to correct the numbering of references to subsections in Clause 48 following amendments made to that clause at Committee stage. I beg to move.

Lord McIntosh of Haringey

My Lords, I am puzzled by those comments. I thought that renumbering took place as a matter of course after amendments had been introduced. I did not know that we needed separate amendments for the renumbering.

Baroness Blatch

My Lords, if the noble Lord reads the amendment, it indicates that parts of the Bill need to be amended. For example, the first one reads, leave out (`4)(a)') and insert (`(2)(a)')",

and indicates consequential changes which need to be made to the Bill.

On Question, amendment agreed to.

Baroness Blatch moved Amendments Nos. 101 and 102:

Page 29, line 46, leave out ("(4)(b)") and insert ("(2)(b)").

After Clause 48, insert the following new clause—

RESTRICTION ON REPORTING OF ASSERTIONS

(" .—(1) Where a court makes an order under section 48(7) or (8) in relation to any assertion, at any time when the order has effect the assertion must not—

1. (a) be published in Great Britain in a written publication available to the public, or
2. (b) be included in a relevant programme for reception in Great Britain.

(2) In this section—

• "relevant programme" means a programme included in a programme service, within the meaning of the Broadcasting Act 1990;
• "written publication" includes a film, a soundtrack and any other record in permanent form but does not include an indictment or other document prepared for use in particular legal proceedings.

(3) For the purposes of this section an assertion is published or included in a programme if the material published or included—

1. (a) names the person about whom the assertion is made or, without naming him, contains enough to make it likely that members of the public will identify him as the person about whom it is made, and
2. (b) reproduces the actual wording of the matter asserted or contains its substance.").

On Question, amendments agreed to.

Clause 49 [Reporting of assertions: offences]:

Baroness Blatch moved Amendments Nos. 103 and 104:

Page 30, line 2, leave out ("48") and insert ("Restriction on reporting of assertions").

Page 30, line 33, leave out ("(9) and (10) of section 48") and insert ("(2) and (3) of section (Restriction on reporting of assertions)").

On Question, amendments agreed to.

Clause 50 [Reporting of assertions: commencement and supplementary]:

Baroness Blatch moved Amendment No. 105:

Page 30, line 35, at end insert ("or (2)").

The noble Baroness said: My Lords, I have already spoken to this amendment with Amendment No. 100. I beg to move.

On Question, amendment agreed to.

Baroness Blatch moved Amendments Nos. 106 and 107:

Page 30, line 39, after ("48") insert (" or (Restriction on reporting of assertions)").

Page 30, line 42, after ("48") insert ("or (Restriction on reporting of assertions)").

The noble Baroness said: My Lords, I have already spoken to these amendments. With the leave of the House, I shall move them en bloc. I beg to move.

On Question, amendments agreed to.

8.15 p.m.

Baroness Blatch moved Amendment No. 108: After Clause 50, insert the following new clause—

Child witnesses

TELEVISION LINKS AND VIDEO RECORDINGS

.—(1) In section 32 of the Criminal Justice Act 1988 (evidence through television links) the following subsections shall be inserted after subsection (3B)—

"(3C) Where—

1. (a) the court gives leave for a person to give evidence through a live television link, and
2. (b) the leave is given by virtue of subsection (1)(b) above,

then, subject to subsection (3D) below, the person concerned may not give evidence otherwise than through a live television link.

(3D) In a case falling within subsection (3C) above the court may give permission for the person to give evidence otherwise than through a live television link if it appears to the court to be in the interests of justice to give such permission.

(3E) Permission may be given under subsection (3D) above—

1. (a) on an application by a party to the case, or
2. (b) of the court's own motion;

but no application may be made under paragraph (a) above unless there has been a material change of circumstances since the leave was given by virtue of subsection (1)(b) above."

(2) In section 32A of the Criminal Justice Act 1988 (video recordings of testimony from child witnesses) the following subsections shall be inserted after subsection (6)—

"(6A) Where the court gives leave under subsection (2) above the child witness shall not give relevant evidence (within the meaning given by subsection (6D) below) otherwise than by means of the video recording; but this is subject to subsection (6B) below.

(6B) In a case falling within subsection (6A) above the court may give permission for the child witness to give relevant evidence (within the meaning given by subsection (6D) below) otherwise than by means of the video recording if it appears to the court to be in the interests of justice to give such permission.

(6C) Permission may be given under subsection (6B) above—

1. (a) on an application by a party to the case, or
2. (b) of the court's own motion;

but no application may be made under paragraph (a) above unless there has been a material change of circumstances since the leave was given under subsection (2) above.

(6D) For the purposes of subsections (6A) and (6B) above evidence is relevant evidence if—

1. (a) it is evidence in chief on behalf of the party who tendered the video recording, and
2. (b) it relates to matter which, in the opinion of the court, is dealt with in the recording and which the court has not directed to be excluded under subsection (3) above."

(3) This section applies where the leave concerned is given on or after the appointed day.

(4) The reference in subsection (3) to the appointed day is to such day as is appointed for the purposes of this section by the Secretary of State by order.").

The noble Baroness said: My Lords, Amendment No. 108 provides for binding rulings to be made in relation to applications under Sections 32 and 32A of the Criminal Justice Act 1988 for a child witness to give evidence by live television link or by means of a video recording.

The House will be aware that these amendments were tabled at Committee stage, but not moved in order that discussions could take place on other possible changes to the child witness arrangements. The meeting which was held was primarily concerned with the amendments tabled by my noble friend Lady Faithfull and other noble Lords. So far as the Government's amendment was concerned, there was broad agreement that binding rulings were desirable.

Baroness David

My Lords, can the noble Baroness not speak quite so fast. It makes the proceedings exceedingly difficult to follow.

Baroness Blatch

My Lords, it may be helpful to the House if I briefly explain the earlier background. The process of consultation which led to the provisions of the Bill dealing with binding rulings at pre-trial hearings also revealed that binding decisions in these cases would be generally welcome. If decisions can be taken at an early stage in proceedings, and if those decisions can be made to stick, there will be enormous benefits for the children concerned. They can be reasonably confident that they will be able to give their evidence by live television link or by video recording. They will be able to prepare themselves on that basis which is likely to make their evidence all the more valuable. It will be very much less likely that they will be faced at short notice, and with insufficient preparation, with the trauma of having to give evidence in court.

These are compelling arguments. It is clearly in the best interests of children that there should be as much certainty as possible about the manner in which they will be giving evidence. This new clause will help to reduce uncertainty. It seeks to ensure that, once a decision has been made that a child should give evidence by live television link or video recording, it cannot lightly be reversed. But we have retained some flexibility to take account of changes in circumstances. Either party to the proceedings will be able to make an application for the child to give evidence in person if there has been a material change in circumstances. The child might, for example, have a last minute change of heart about using the live television link. Judges will retain discretion to vary an earlier ruling if it appears to be in the interests of justice to do so.

These amendments reflect the Government's continuing determination to take whatever practical steps we can to improve the arrangements for child witnesses to give evidence. We are pursuing a range of other measures. There is not time to mention them all tonight; but it may be helpful to give some examples: exploring the role for the companion who accompanies the child when using the live TV link to put the child at ease and reduce stress; engaging the Criminal Justice Consultative Council in further consideration of practical measures to ease stress on children, such as improved arrangements for familiarising children with the court and preparing them for what to expect; further consideration of ways to reduce delays in dealing with child witness cases in the courts; supporting the preparation of a video on best practice in dealing with child witnesses, including the development of more suitable questioning techniques. We welcome that project in which the NSPCC and others are involved. Government departments, including the Home Office, have already promised £20,000 towards the costs. I am pleased to be able to announce today that the Home Office will be providing an additional £30,000 this financial year; encouraging best practice in the conduct of video recorded interviews to be used as evidence-in-chief; encouraging earlier applications and decisions on the use of TV links or video recordings; and action to improve the technical quality of video recordings in order to encourage their greater use in court.

This is not a comprehensive account of all the work in hand to improve the operation of the present arrangements. We monitor them carefully, and when we identify anything that will improve the situation for child witnesses we take action, as with this amendment. But I am convinced that radical change to arrangements put in place barely three years ago after extensive consultation, far from benefiting children, would be potentially harmful. Rather, we need to press ahead with practical improvements which we can be confident will benefit children. That is what this amendment achieves. I commend it to the House. I beg to move.

Baroness Faithfull

My Lords, I thank my noble friend the Minister. We are all grateful for the amendments. However, perhaps I may make two points. First, if a child wants to vary or change the way in which he or she gives evidence, will the child be given the opportunity to do so? Secondly, in view of the amendments that are to follow and possible consultation between now and the next stage of the Bill, will my noble friend be willing to vary this amendment in the light of those that are to follow?

Baroness Blatch

My Lords, I touched on the point in relation to the situation where a child may wish to vary the way in which he or she gives evidence. We want as much certainty as possible. However, at the end of the day if a child decides that he or she wants to give evidence in a different way, that will need to be considered by the judge. If they are acceptable to the court and do not militate against the justice for the defendant (who is, after all, standing accused), I have no doubt that the new arrangements will be acceded to. However, the new arrangements at this stage will not include the arrangements set out in the proposals of the next set of amendments.

In relation to my noble friend's second point, it all depends on the way in which my noble friend feels that my amendment needs to be changed in the light of the following amendments. My understanding has always been that the binding rulings amendment, irrespective of what follows, is a freestanding amendment except for those that we have already spoken to.

Lord Ackner

My Lords, before the noble Baroness sits down, can I take it that she confirms that last-minute changes of heart by the child amount to, potentially, a material change of circumstances?

Baroness Blatch

My Lords, the binding ruling would determine the arrangements. If there was a last-minute change of heart, it would mean that there would need to be reconsideration by the judge of the arrangements and the degree to which he could accede to the desires of the child, so long as it was permissible within the arrangements set out in the Bill.

On Question, amendment agreed to.

Baroness Faithfull moved Amendment No. 109: After Clause 50, insert the following new clause—

VIDEO RECORDINGS OF TESTIMONY FROM CHILD WITNESSES

(".—(1) Section 32A of the Criminal Justice Act 1988 shall be amended as follows.

(2) In subsection (3), paragraph (a) shall be omitted.

(3) After subsection (3) there shall be inserted,—

"(3A) Where a video recording is to be tendered in evidence under this section the court may grant leave for a child witness to be cross-examined at a pre-trial hearing in informal surroundings at which only—

1. (a) the judge;
2. (b) counsel for the parties;
3. (c) an appropriate adult to accompany the child as set out in the rules of court,

shall be present in the same room as the child.

(3B) At any pre-trial hearing the defendant shall be permitted to see and hear the proceedings and to communicate with his legal advisors by such means as shall be laid down by rules of court.

(3C) The pre-trial hearing of the cross-examination of the child witness shall be video recorded and the video recording shall, with leave to the court, be tendered in evidence before the jury.".").

The noble Baroness said: My Lords, the purpose of this amendment is to enable children to give their cross-examination evidence at an early stage prior to the trial. The cross-examination will be video recorded and played at the trial. Under our current system, children have to wait for 10 months on average before they can be cross-examined on the evidence they provide(' in the video recorded interview. Prosecution cases can reach the transfer or committal stages within four to six weeks of the first disclosure interview. All the prosecution papers have to be with the defence by that time. If this amendment were implemented, the defence could be given a further four to six weeks to prepare for cross-examination of the child witness on video. This would reduce the waiting time for the child witness to an average of seven months. The amendment would not prejudice the legitimate rights of the defendant in any way. The welfare of child witnesses would be better protected and the interests of justice would be served because the child witness would be able to provide his or her possible evidence.

In moving this amendment I am referring also to Amendments Nos. 110 to 113A which will be spoken to by other noble Lords. Perhaps I may make some general comments. The Children Act 1989 lays down: When a court determines any question with respect to…the upbringing of a child…the child's welfare shall be the court's paramount consideration".

But, on the other hand, the prime duty of the criminal court is for justice to be done. Therefore, there seems to be some conflict between the welfare of the child, on the one hand, and the need for justice on the other.

I have found that there are varying opinions as to whether the Criminal Justice Acts of 1988 and 1991 are working well. The Association of Directors of Social Services is dissatisfied with the present situation. I have also heard from all the childcare voluntary organisations, including the NSPCC and the National Children's Bureau. We are grateful for their help. The police also have some reservations about the present situation. At an interdisciplinary conference held by the Sieff Foundation at Cumberland Lodge in 1995 great divisions of opinion were expressed. It therefore seems that we need to look closely at reforming the law as it stands not only for children's sake but also for the sake cif the accused.

I am the chairman of the Faithfull Foundation, an organisation of which my noble friend the Minister is well aware and one with which she has helped me. It seeks to help men who want to return to their families but cannot do so because they must have treatment. The position is that a judge can make a probation order with a condition of residence at the clinic which we run. The men tell me that if a child will not give evidence because of fear—there are many such children—and if a child gives different evidence from the evidence-in-chief, the jury and the judge are in real difficulties. In a case where the accused is discharged, the man has said to me, "Where do I stand?" Indeed, where does he stand? Is he guilty or not guilty? The social services are in a great difficulty. Do they allow the child to go home or not? I thought that I should bring this matter to your Lordships' attention.

Opinions on the judicial side vary. Some circuit judges agree with the present situation and consider that it is working well in their courts. Others consider that it is not working well. There is a division of opinion among the QCs. At a dinner party the other night I was speaking to a QC. He disagrees with the present arrangements and wants changes. He is conducting research on the matter. It seems to me that after five years' experience we need to give careful consideration to the future. I wonder whether before the next stage of the Bill we might have interdisciplinary consultation between all those concerned with the welfare of the child and justice for the accused.

Amendment No. 110 is a new clause to which the noble Baroness, Lady David, will be speaking. She will also be speaking to Amendments Nos. 111 and 112. The noble Lord, Lord Acton, will be speaking to Amendment No. 113 and the noble Lord, Lord McIntosh of Haringey, will be speaking to Amendment No. 113A. I beg to move.

Baroness David

My Lords, I should like to support this group of amendments and have great pleasure in doing so, as I normally do like to support the noble Baroness, who takes such trouble about all these matters of children, justice and the courts.

I should like to say a word about Amendment No. 110. The purpose of the amendment is to give the court power to allow a video recording to be accepted as an alternative to written evidence in circumstances where a child witness cannot attend the trial. Leave can already be given under the provisions in Sections 42 and 43 of the Children and Young Persons Act 1933 for children to give written evidence in specified circumstances where they cannot attend a trial. Video taped evidence would allow the court to see and hear a child witness giving evidence. This is clearly a superior form of evidence to that which is already accepted. If the provisions in the Children and Young Persons Act 1933 were expanded to include video taped depositions we might well see these procedures brought to life whereas they are currently not used in our jurisdiction. This is in contrast to other jurisdictions, where broadly similar provisions are widely used. Video taped evidence would be a very substantial improvement, surely, on written evidence which is now allowed.

I should like to move on to Amendment No. 111. The purpose of this amendment is to give the court power to order that advocates' questions should be put to the child by a person who is better able to communicate with the child and with whom the child feels comfortable—someone thoroughly experienced in dealing with children. This could apply to children with disabilities as well as to very young or very disturbed children. Once again, this amendment is based on the proposal from the Pigot Committee that a court could only grant leave in appropriate cases. I should like to emphasise that this amendment refers to very young or very disturbed children. The interlocutor might be a paediatrician, a child psychiatrist or a social worker. The role of that person would be similar to that of the interpreter in court where a witness does not know the language.

In other words, this provision would only be appropriate where the child witness would be prevented from giving a full account of his or her evidence were it not for the help of the interlocutor. Particularly vulnerable children who have been abused, such as children with learning difficulties, should not be denied the opportunity to take part as child witnesses in criminal proceedings.

It will be equally important to be certain that the defendant's interests are protected by ensuring that counsel for the parties decide what questions are to be put to the child. It will be for the judge to ensure that the interlocutor puts the questions in a neutral manner. This should ensure that Article 6.3.c of the European Convention on Human Rights is not contravened. The article states: Everyone charged with a criminal offence has the following minimum rights…to defend himself in person or through legal assistance of his own choosing".

At present many vulnerable children who have been abused cannot be heard under our criminal justice system. Those children should not be denied the opportunity to be child witnesses in criminal proceedings. This amendment will help to give those children a voice in our judicial system. This is a very important amendment both for the child and for justice.

The third amendment I wish to speak to is Amendment No. 112. The purpose of this amendment is to ensure that the child witness is given an opportunity to express his or her views on whether they wish to give their evidence prior to the trial or wait until the trial. A number of us have been trying for a long time to get the views of the child accepted in various Bills and this again is another attempt to do so.

This amendment was debated in Parliament during our discussions on the Criminal Justice Bill in May 1991. It was said then that everyone agrees that it is best practice to take account of the wishes of the child when deciding how a child witness should give evidence. However, it was also said that the consultation does not need express provision in statute. But nearly five years later, those who have had the greatest experience of working with that Act, as it now is—and that means a great many people who are officers in the NSPCC— regrettably see at first hand how frequently the wishes and feelings of child witnesses are not known by the court and are not properly taken into account. All too often the lines of communication are so weak that basic information does not get relayed from the child to the judicial system or from the judicial system to the child.

The amendment will give child witnesses an opportunity to express their views at a level appropriate to their age and understanding. But it would not be for the child to determine the matter. It will remain the judge's responsibility to balance the interests of the parties and of justice in all the circumstances of the case.

If express provision were made for this consultation in the statute we would begin to see consistent, fair and equal treatment of all child witnesses across the country in relation to this issue. I would like to add that the Metropolitan Police see a very real need for counsel and judges to become far more child aware in their dealings with these cases.

Our present criminal justice system is not meeting the needs of children or of justice. The purpose of this group of amendments is to eliminate unnecessary stress which is caused to child witnesses. Reducing their stress will not only result in the positive benefit of protecting the child's welfare; it will also mean that the interests of justice will be served because the child witness will be more able to give his or her best possible evidence.

I support the noble Baroness. This is an extremely important group of amendments. Although I appreciate very much what the noble Baroness, Lady Blatch, has put forward in her amendment, I would like very careful consideration to be given to this very important group of amendments.

8.30 p.m.

Lord Acton

My Lords, I have put my name to Amendments Nos. 109 to 113, and I would like to speak to Amendment No. 113.

Under this amendment a child witness who has already been cross-examined under Amendment No. 109, to which the noble Baroness, Lady Faithful], spoke, may be recalled by the court for a further out-of-court hearing. That would happen when it appears to the court to be in the interests of justice; for example, when fresh evidence comes to light. In this way the defendant's rights are preserved. The conditions at the second hearing would be the same as at the first hearing.

Thereafter, the defence can make an application for a further out-of-court hearing only if there has been a further material change since the second hearing. A significant proportion of children will undoubtedly not be recalled. Those children who are recalled will at least have had most of their cross-examination got out of the way and recorded on video at a much earlier stage. Moreover, they will have had the benefit of therapy thereafter.

In the interests of justice to the defendant, Amendment No. 113 forms an essential part of a scheme, with Amendment No. 109. Perhaps I may add that the Criminal Bar Association supports the principle of Amendments Nos. 109 and 113. I join with the noble Baroness, Lady David, in all that she has said as regards the amendment of the noble Baroness, Lady Blatch, and the group of amendments spoken to by the noble Baroness, Lady Faithfull

Lord McIntosh of Haringey

My Lords, I rise to speak to Amendment No. 113A. I was not involved in this matter before. I came into it because I had the good fortune to be invited by the Minister and the noble Baroness, Lady Faithfull, to what I found to be a very interesting and helpful meeting at which the NSPCC and the Home Office officials concerned with these matters were able to exchange views very freely and openly. I have no professional or personal knowledge of what happens in court, and therefore I do not have any view about the other amendments in particular. However, it was brought home to me by that discussion that one of the most important keys both as regards the civilised way to deal with child witnesses and the quality of evidence, and therefore the quality of justice, was that the delay between the offence and the child giving evidence at the trial should be as short as possible. I understood that in many cases a trial takes place and the child gives evidence eight months, 10 months or even more than a year after the offence has taken place and the charge has been laid. That is both unfair to the child in that it cannot embark on any programme of therapy or help and also unfair to justice and the defendant in that the child's memory is likely to become less accurate and its confidence in giving evidence is likely to be less.

Therefore, it seems to me that the key to this matter, whatever the justice or otherwise of the other proposals, is to bring these cases to court as quickly as possible. I am confirmed in that view by the letters from the Lord Chief Justice and the Minister to the noble Baroness, Lady Faithfull, which came together. The Lord Chief Justice confirmed that his object was to bring these cases to trial as quickly as possible.

It seems to me that there is only one way to bring cases on quickly, and that was confirmed by the transfer of trial debate which we had earlier this evening; namely, to set time limits. Unless there is a time limit, we shall get into the classic situation where there is no listing of the case because there is no assurance that the defence and the prosecution are ready. The defence and the prosecution do not conclude their case because there is no listing and therefore nothing happens. If there were a fixed timescale as proposed in Amendment No. 113A, with the provision, as shown in the second part of the amendment, for that to be varied with the approval of the court, then everyone would know that the case had to be prepared, as I am sure that it can be, so that the children can give evidence as quickly as possible and be released to get on with their lives and with whatever therapy is necessary. I strongly support Amendment No. 113A.

Lord Ackner

My Lords, the noble Baroness, Lady David, referred to our debate in May 1991 when we considered the question of fully implementing the Pigot Report. I supported the amendments that were designed for that purpose and was able to tell the House that the Council of Her Majesty's Circuit Judges supported Pigot both when the report came out and despite the criticisms made in the House in the debate on the Criminal Justice Bill the previous month. I also informed the House that the Criminal Bar Association was also in favour of the full implementation of the Pigot Report, which would have meant cross-examination following, as soon as the defence was able, on the examination-in-chief, or whatever was the appropriate description.

I also attended the meeting to which the noble Lord, Lord McIntosh, referred, and at that stage had assumed that the present support for the full implementation of Pigot continued to exist, particularly as one of the circuit judges who had been in communication with the noble Baroness, Lady Faithfull, had indicated that. It was following the meeting called by the noble Baroness, Lady Blatch, that I learnt that the Lord Chief Justice had asked Lord Justice Rose to confer with his group to discover the attitude to having cross-examination earlier, and before the trial. The information which we received, and which was recorded in the letter from the Lord Chief Justice to the Minister, indicated that the judges consulted by Lord Justice Rose were not in favour of the proposals.

The judges who are at the sharp end of the subject are the circuit judges. Therefore, anxious to see whether there had been a change in the reaction of the Council of Her Majesty's Circuit Judges, I recently got in touch with the president, his Honour Judge Fawcus, who got in touch with Judge Balston, the chairman in charge of the committee concerned with this aspect of law reform. In the very limited time available, he sought views. Some of the views were provided under a misconception that the proposal was that within days of the completion of the video of the evidence-in-chief the defence should be obliged to cross-examine. That was never the proposal. The proposal always was that that should happen as soon as the defence was ready to cross-examine. That might be a matter of even two or three months. As the noble Baroness, Lady Faithful], said, there is a degree of split between the judges as to how the present system is working. All of them agree that a balance has to be held between the interests of the child witness and fairness to the defendant. The question is how to achieve that balance.

One of the factors which is holding up the speedy implementation of trials is the public interest immunity plea which is taken in regard to local authority documents where the child is in care because the defence wishes to see whether there is any material which relates to the defence. The public interest immunity plea is then taken and the unfortunate judge has to wade through a mass of documents to see to what extent the plea is valid and to what extent there is material which will assist the defence.

I very much agree with the proposal of the noble Baroness, Lady Faithfull, that more minds have to be brought to bear on this question. Experiences need to be exchanged and consideration must be given to trying to expedite the hearing because the answer to the rival views is accepted by them to be, "Get the hearing on as soon as you can and then the question of having the cross-examination prior to the trial won't arise".

I should like to make one final point with regard to the proposals. The bogeys that are always produced are that you have the cross-examination and everybody is happy, but that all of a sudden new material comes onto the scene and the child has to be recalled, and then more new material comes onto the scene and there are further recalls and recalls. That is not how I envisaged it at all. If there has to be a recall, I have always assumed that that recall will take place at or very close to the trial because if further requests for cross-examination arise, those are all grouped together.

However, there is a danger of over-exaggerating the risk of recall. One is not dealing with many potential defences. The question of consent does not arise as it does with many sexual offences. The issue often may be: did it ever happen at all? Is it a case of childish imagination? Was it the defendant who was the guilty party or some other person? That does not throw up many potential fields for further cross-examination once cross-examination has taken place at a time when the defence is confident of being able to exercise it. Therefore, as I have said, I support very much the noble Baroness, Lady Faithfull.

8.45 p.m.

Viscount Brentford

My Lords, perhaps I may briefly support the amendments and make one or two additional points that have not yet been made. Although I support Amendment No. 108, I believe that there are some significant additions in the current group of amendments which I should like to see incorporated into the Bill. As the noble and learned Lord, Lord Ackner, rightly said, we are pressing for fairness and justice between the prosecution, the defendant and the child witness. Clearly, it is a question of balance. Although the prosecution and the defence will have their members of the Bar with them, the main problem with which we are all concerned is the welfare of the child. That is the most tricky point to resolve.

Various points have been made to me in my discussions with people who are expert with young children. First, where there is a long delay, it is perfectly possible for a child who has had a nasty experience to be able, as a self-defence mechanism, to blot the memory right out of his or her mind. That means that, although the child will give evidence on a video shortly after the event, if six months then pass before recall, the child may quite truthfully have no recollection of the event. That does not mean that the child has had therapy and has been cured of the trauma of the disastrous event, because it will resurface later. It means that the later bout of evidence will be unreliable. Therefore I urge that we do our utmost to ensure speedy events and for any recall evidence to be unable to contradict what was said previously. I have been given examples of how that has wrecked cases.

I should like to emphasise the need to have any child hearings, whether videoed or not, in informal surroundings. While I do not press for judges to wear jeans and a teeshirt to hear a matter involving a child, I press for an informal room, with the parties not wearing robes or wigs. If a child can be signed off after a video hearing at which, after all, defence and prosecution representatives are present, the therapy can begin straightaway, as the noble Lord, Lord Acton, rightly said. That is important for the welfare of the child.

As the 1994 Social Services Inspectorate report on this matter stated: The users of the video link are more likely to describe the proceedings as fair". That is the right and proper way in which we should be going. Therefore I end where I began: in the pursuit of fairness these amendments are important. I hope that further consultations will bear fruit before Third Reading. I warmly support the principles embodied in the amendments.

Baroness Blatch

My Lords, the Government share the concern for the welfare of child witnesses which has motivated this group of amendments. When introducing them, my noble friend mentioned our recent meeting to discuss the child witness arrangements and how they might be improved. It was a very helpful meeting and illustrated that there is much more upon which we agree than upon which we differ. The Government accept that there is scope to improve the present arrangements. I outlined a few minutes ago the range of measures which we are taking. We are confident that they will secure practical benefits for children. I have to say that we are not persuaded that the same can be said of the changes proposed in these amendments.

My noble friend has explained that the new clause (Amendment No. 109) provides for pre-trial cross-examination of children to be conducted in informal surroundings and to be video recorded for use at the trial. The aim is to conduct the cross-examination sooner so that the quality of evidence is better, stress is reduced and the child can, if necessary, receive therapy sooner. I think we would probably all agree that if those benefits could be achieved they would be a prize worth having. Unfortunately, we doubt that they can be achieved. Indeed, we are concerned that the result could be more stress for the child, not less. As your Lordships would expect, on an issue as important as this, we have also sought the views of the Lord Chief Justice who shares our concerns.

Although it might be possible to put some questions at an early stage, a proper cross-examination cannot take place until the defence is fully prepared and ready to proceed with the trial. I might say in passing that that is where the delays arise. They are proper delays, because until the defence is properly prepared for the trial it would be inappropriate and unfair to go ahead. That means that in most cases cross-examination could not take place more than a few days earlier than at present. I recognise that the further amendment (Amendment No. 113A) tabled by my noble friend seeks to reduce delays by imposing a time limit within which the pre-trial cross-examination must take place. For the reasons I have just explained, the practical effect would be to impose a time limit within which both sides must be ready, not just for cross-examination, but for the trial to proceed. It is clear, therefore, that pre-trial cross-examination does not of itself provide a practical solution to the problem of delay. It is a problem which we are keen to tackle. We and the Lord Chief Justice believe that action to reduce delay provides a better way of helping children than pre-trial cross-examination. Whether time limits of the kind proposed by my noble friend have a part to play in achieving that objective is a matter which we need to consider carefully and as regards which we need to consult others.

We are concerned also that whenever it does take place, pre-trial cross-examination could lead to recall and more stress for the child. It is most unlikely that in a contested case the defendant would guarantee not to seek a recall in any circumstances. The amendments recognise that a recall might be needed and provide that it shall take place out of court and under the same conditions as the original cross-examination. The scope for recalls is a matter upon which we have specifically sought the views of the Lord Chief Justice. He considers that further questions which the defence want to put to the child might easily arise and that, bearing in mind the judge's overriding responsibility to ensure a fair trial, the judge could not reasonably refuse the defence the chance to do so. The result would be not one cross-examination as at present, but two or perhaps even more. The possibility of recall would create uncertainty for the child who might have to appear again at short notice.

I understand the desire that children who are victims of these hideous crimes should receive any therapy they need as soon as possible. But again, pre-trial cross-examination does not appear to provide the answer. It is already possible for therapy to be given in some cases in advance of the trial. But if cross-examination cannot be done much earlier than at present, and if there would still be the possibility of recall, the difficulties of providing therapy in certain cases would still arise under these proposed arrangements.

If we were convinced of the benefits of pre-trial cross-examination, we would have adopted it by now. There are genuine reservations—reservations which I must say are shared by the Lord Chief Justice and his senior colleagues—about the principle of pre-trial cross-examination and its potential effect on the child. Those reservations must be resolved before it would be right to legislate. We will continue to keep the arrangements under review, but we cannot support this new clause.

The new clause (Amendment No. 110) appears to be designed to achieve a similar outcome, but by a different route. Sections 42 and 43 of the 1933 Act were intended to provide a method of getting emergency so-called "sick-bed" evidence by children tested at the bedside and admitted into court. The test that giving evidence in court would involve a serious danger to the child's life or health is a very high one to meet. That may explain why the provisions are hardly ever used. In addition, evidence taken that way is admissible only if the defence has had an opportunity to cross-examine the child. In other words, allowing video recording of evidence taken that way raises all the difficulties about pre-trial cross-examination to which I have just referred. If a child is seriously ill it must be doubtful whether the child should be expected to have to video record evidence or undergo cross-examination. If a child is fit enough to give evidence on video or a live link, the best course must be to make use of the specific provisions which have been introduced following the Pigot Report. Those provisions are subject to detailed rules of court and the Memorandum of Good Practice is designed to ensure that they operate as effectively as possible.

My noble friend explained how the amendment to provide for questioning by an intermediary would work. It is also important to recognise that the proposal assumes that provision has been made for video recording of pre-trial cross-examination which, as I have explained, the Government cannot support. That apart, it is clear that we are not talking about the use of interpreters who are already used when necessary. Nor would there be any benefit to the child if the intermediary relayed the question in precisely the same style and words. The proposal is that the intermediary should be able to adjust the style and content of the questioning. The danger here is that in doing so, the intermediary could ask questions in a way that is prejudicial to the conduct of the case, and so to the interests of the child, and flies in the face of justice for the defendant. Questions could be misunderstood or may lose their purpose and the value of spontaneous dialogue could be lost.

Those are reservations which were recognised by the Pigot Committee when the proposal was first made. They are concerns which the Lord Chief Justice shares. There are ways in which the present arrangements might be improved to try to ensure that so far as possible questioning of children reflects their particular needs and abilities. We are considering what more can be done to encourage best practice.

The Government accept that the wishes of the child should be taken into account in deciding whether to make use of the facilities to give evidence by live TV link or video recording. That is already the firm policy of the Crown Prosecution Service. It may sometimes not be possible to obtain the child's views before, as this amendment requires, an application to the court is made. The difficulty with statutory requirements of this kind is that they cannot always cater for the variety of cases which arise in practice. Where, as in this case, the objective can as well, and more flexibly, be achieved without legislation, we believe that that is the right course. We shall, as part of our further work to improve the existing arrangements, be seeking ways to ensure that the wishes of the child are so far as possible taken into account at all stages.

I am sorry to have spoken at such length, but it is important that the arguments for and against these amendments should be properly understood. We all have the same objective—making it easier for children to give their evidence with the minimum of distress. The Government are determined to implement changes which fulfil that objective. In addition to provision for binding rulings, there are a number of practical steps which we are taking to improve the present arrangements—measures which aim to increase the use of video recorded evidence; make the television link easier to use; and, with the additional £30,000 funding we are providing, encourage best practice in dealing with child witnesses. We believe we should focus our efforts on achieving such practical improvements which will benefit children.

My noble friend posed a particular question. She asked whether I would respond positively to a request to meet an inter-disciplinary team. That is a useful suggestion and I would be prepared to meet such a team. I should like us to focus our attention on the ways in which the arrangements are working now and to consider proposals that the Government have put in hand and see how they will work while at the same time discussing other issues. I believe that it would be difficult to achieve fruitful conclusions between now and Third Reading. However, I have no argument at all in relation to the suggestion made by my noble friend.

I believe that monitoring should continue and that we should continue to do what can be done which is both compatible with justice to the defendant and addresses the pressures and stresses created for child witnesses.

9 p.m.

Baroness Faithfull

My Lords, I thank the Minister for that very full explanation which we are very grateful to have. However, I am disappointed. We are working in a democracy and it seems to me that we are not listening to the people who do the work; namely, social services workers, voluntary organisations, many, although not all, of the circuit judges and many, although not all, of the QCs and other members of the Bar. We must listen to the people who do the work and who have had experience of the provisions over the past five years. I realise that the noble Baroness has made some very valuable proposals which may improve matters, but I believe that they will not meet the anxieties which have been expressed this evening.

I wish to consider this matter between now and Third Reading. I wish there to be an inter-disciplinary meeting, which I believe could be arranged. On that basis, I hope that other noble Lords whose names are to the amendment will allow me to withdraw it this evening.

Amendment, by leave, withdrawn.

[Amendments Nos. 110 to 113A not moved.]

Lord Mackay of Drumadoon moved Amendment No. 114: After Clause 51, insert the following new clause—

("Fraud

FRAUD

. Schedule (Fraud) (which amends provisions relating to serious or complex fraud) shall have effect.").

The noble and learned Lord said: My Lords, in moving this amendment, I shall speak also to Amendments Nos. 123 and 144. These provisions contain a number of amendments to the Criminal Justice Act 1987 in respect of the provisions on preparatory hearings in cases of serious or complex fraud to ensure that, where necessary, the provisions in the 1987 Act are consistent with those in Part III of the Bill.

The main changes are as follows. First, Section 9 of the 1987 Act is amended so that an order made before the preparatory hearing will have the same status at the trial as an order made at the preparatory hearing. Secondly, new Section 9A after Section 9 provides that where a judge makes an order before the preparatory hearing, that order will be subject to the same provisions as orders made at the hearing. Thirdly, the judge may comment, and the jury may draw inferences, from any failure by either party to comply with the requirement of an order made before, as well as at, the preparatory hearing. Similarly, the judge may comment and the jury may draw inferences from any departure from the case disclosed before the hearing in exactly the same way as at the hearing. Finally, the reporting restrictions under Section 11 of the 1987 Act are brought into line with those under Part III of the Bill and a number of omissions in the 1987 Act are rectified. There are a number of other technical amendments of limited consequence. I beg to move.

On Question, amendment agreed to.

Baroness Blatch moved Amendment No. 115: After Clause 51, insert the following new clause—

("Alibi

ALIBI

.—(1) Section 11 of the Criminal Justice Act 1967 (notice of alibi) shall cease to have effect, but subject to the following provisions of this section.

(2) Subsection (1) does not affect the application of section 11 of the Criminal Justice Act 1967 to proceedings before courts-martial by virtue of section 12 of that Act.

(3) The reference in section 12 of the Criminal Justice Act 1967 to section 11 as it applies to proceedings on indictment shall be construed as a reference to it as it would apply to proceedings on indictment apart from subsection (1) of this section.

(4) In section 9(6) of the Criminal Justice Act 1987 (disclosure in cases involving fraud) in paragraph (a) for the words "section 11 of the Criminal Justice Act 1967" there shall be substituted "section 5(5) of the Criminal Procedure and Investigations Act 1996".

(5) This section applies in relation to alleged offences into which no criminal investigation, within the meaning given by section 1(4), has begun before the day appointed under section 1(5).").

On Question, amendment agreed to.

Clause 53 [Orders and regulations]:

Lord Mackay of Drumadoon moved Amendments Nos. 116 to 118:

Page 32, line 19, at beginning insert — ("( ) This section concerns the power of the Secretary of State to make an order or regulations under this Act.").

Page 32, line 19, leave out ("under this Act").

Page 32, line 22, leave out ("under this Act").

The noble and learned Lord said: My Lords, in moving these amendments I shall speak also to Amendment No. 120. These are technical amendments. Clause 53 provides that the power to make an order under the Bill is to be exercised by statutory instrument. This is designed with orders made by the Secretary of State in mind. The Bill also provides for the court to make an order in certain circumstances; for example, an order relating to the disclosure of material to the accused under Part I. These are not orders which should be made by statutory instrument. Accordingly, Amendment No. 116 limits Clause 53 to orders made by the Secretary of State. The other three amendments are consequential. I beg to move.

On Question, amendments agreed to.

Baroness Blatch moved Amendment No. 119:

Page 32, line 23, at end insert— ("(2A) No order under section 18 shall have effect unless approved by a resolution of each House of Parliament.").

The noble Baroness said: My Lords, I spoke to this amendment with Amendment No. 74. I beg to move.

On Question, amendment agreed to.

Baroness Blatch moved Amendment No. 120:

Page 32, line 24, leave out ("under this Act").

The noble Baroness said: My Lords, this amendment was spoken to with Amendment No. 116. I beg to move.

On Question, amendment agreed to.

Clause 54 [Extent]:

Lord Mackay of Drumadoon moved Amendment No. 121:

Page 32, line 27, leave out from ("exception") to end of line 28 and insert ("of—

1. (a) sections 30, 31, 34, 35, (Restriction on reporting of assertions), 49, 50(3), (Fraud), this section and section 56;
2. (b) paragraph 6 of Schedule (Fraud), and paragraph 7 of that Schedule so far as it relates to paragraph 6;
3. (c) paragraph 8 of Schedule 3 so far as it relates to provisions amending section 11 of the Criminal Justice Act 1987.").

The noble and learned Lord said: My Lords, Clause 54(1) sets out the provisions of the Bill which extend to Scotland. The relevant provisions are concerned with reporting restrictions which operate throughout Great Britain. This amendment is consequential on two other sets of government amendments to the Bill which have been made on Report and which also extend to Scotland. I beg to move.

On Question, amendment agreed to.

Schedule 1 [Transfer for Trial]:

[Amendment No. 122 not moved.]

Baroness Blatch moved Amendment No. 123: After Schedule I, insert the following new schedule—

("SCHEDULE

FRAUD

Introduction

1. The Criminal Justice Act 1987 shall be amended as provided by this Schedule.

Preparatory hearings

2. In section 7 (power to order preparatory hearing) subsections (3) to (5) (power to make order that could be made at the hearing) shall be omitted.

3.—(1) Section 9 (the preparatory hearing) shall be amended as follows.

(2) In subsection (7) (warning of possible consequence under section 10(1)) the word "(1)" shall be omitted.

(3) In subsection (10) for the words "at or for the purposes of a preparatory hearing" there shall be substituted "under this section".

4. The following section shall be inserted after section 9—

"Orders before preparatory hearing.

9A.—(1) Subsection (2) below applies where—

1. (a) a judge orders a preparatory hearing, and
2. (b) he decides that any order which could be made under section 9(4) or (5) above at the hearing should be made before the hearing.

(2) In such a case—

1. (a) he may make any such order before the hearing (or at the hearing), and
2. (b) subsections (4) to (10) of section 9 above shall apply accordingly."

5. The following section shall be substituted for section 10 (later stages of trial)—

"Later stages of trial.

10.—(1) Any party may depart from the case he disclosed in pursuance of a requirement imposed under section 9 above.

(2) Where—

1. (a) a party departs from the case he disclosed in pursuance of a requirement imposed under section 9 above, or
2. (b) a party fails to comply with such a requirement,

the judge or, with the leave of the judge, any other party may make such comment as appears to the judge or the other party (as the case may be) to be appropriate and the jury may draw such inference as appears proper.

(3) In deciding whether to give leave the judge shall have regard—

1. (a) to the extent of the departure or failure, and
2. (b) to whether there was any justification for it.

(4) Except as provided by this section no part—

1. (a) of a statement given under section 9(5) above, or
2. (b) of any other information relating to the case for the accused or, if there is more than one, the case for any of them, which was given in pursuance of a requirement imposed under section 9 above,

may be disclosed at a stage in the trial after the jury have been sworn without the consent of the accused concerned."

Reporting restrictions

6. The following sections shall be substituted for section 11 (reporting restrictions)—

"Restrictions on reporting.

11 .—(1) Except as provided by this section—

1. (a) no written report of proceedings falling within subsection (2) below shall be published in Great Britain;
2. (b) no report of proceedings falling within subsection (2) below shall be included in a relevant programme for reception in Great Britain.

(2) The following proceedings fall within this subsection—

1. (a) an application under section 6(1) above;
2. (b) a preparatory hearing;
3. (c) an application for leave to appeal in relation to such a hearing;
4. (d) an appeal in relation to such a hearing.

(3) The judge dealing with an application under section 6(1) above may order that subsection (1) above shall not apply, or shall not apply to a specified extent, to a report of the application.

(4) The judge dealing with a preparatory hearing may order that subsection (1) above shall not apply, or shall not apply to a specified extent, to a report of—

1. (a) the preparatory hearing, or
103
2. (b) an application to the judge for leave to appeal to the Court of Appeal under section 9(11) above in relation to the preparatory hearing.

(5) The Court of Appeal may order that subsection (1) above shall not apply, or shall not apply to a specified extent, to a report of—

1. (a) an appeal to the Court of Appeal under section 9(11) above in relation to a preparatory hearing,
2. (b) an application to that Court for leave to appeal to it under section 9(11) above in relation to a preparatory hearing, or
3. (c) an application to that Court for leave to appeal to the House of Lords under Part II of the Criminal Appeal Act 1968 in relation to a preparatory hearing.

(6) The House of Lords may order that subsection (1) above shall not apply, or shall not apply to a specified extent, to a report of—

1. (a) an appeal to that House under Part II of the Criminal Appeal Act 1968 in relation to a preparatory hearing, or
2. (b) an application to that House for leave to appeal to it under Part II of the Criminal Appeal Act 1968 in relation to a preparatory hearing.

(7) Where there is only one accused and he objects to the making of an order under subsection (3), (4), (5) or (6) above the judge or the Court of Appeal or the House of Lords shall make the order if (and only if) satisfied after hearing the representations of the accused that it is in the interests of justice to do so; and if the order is made it shall not apply to the extent that a report deals with any such objection or representations.

(8) Where there are two or more accused and one or more of them objects to the making of an order under subsection (3), (4), (5) or (6) above the judge or the Court of Appeal or the House of Lords shall make the order if (and only if) satisfied after hearing the representations of each of the accused that it is in the interests of justice to do so; and if the order is made it shall not apply to the extent that a report deals with any such objection or representations.

(9) Subsection (1) above does not apply to—

1. (a) the publication of a report of an application under section 6(1) above, or
2. (b) the inclusion in a relevant programme of a report of an application under section 6(1) above,

where the application is successful.

(10) Where—

1. (a) two or more persons are jointly charged, and
2. (b) applications under section 6(1) above are made by more than one of them,

subsection (9) above shall have effect as if for the words "the application is" there were substituted "all the applications are".

(11) Subsection (1) above does not apply to—

1. (a) the publication of a report of an unsuccessful application made under section 6(1) above,
2. (b) the publication of a report of a preparatory hearing,
3. (c) the publication of a report of an appeal in relation to a preparatory hearing or of an application for leave to appeal in relation to such a hearing,
4. (d) the inclusion in a relevant programme of a report of an unsuccessful application made under section 6(1) above,
5. (e) the inclusion in a relevant programme of a report of a preparatory hearing, or
6. (f) the inclusion in a relevant programme of a report of an appeal in relation to a preparatory hearing or of an application for leave to appeal in relation to such a hearing,

at the conclusion of the trial of the accused or of the last of the accused to be tried.

(12) Subsection (1) above does not apply to a report which contains only one or more of the following matters—

1. (a) the identity of the court and the name of the judge;
2. (b) the names, ages, home addresses and occupations of the accused and witnesses;
3. (c) any relevant business information;
4. (d) the offence or offences, or a summary of them, with which the accused is or are charged;
5. (e) the names of counsel and solicitors in the proceedings;
6. (f) where the proceedings are adjourned, the date and place to which they are adjourned;
7. (g) any arrangements as to bail;
8. (h) whether legal aid was granted to the accused or any of the accused.

(13) The addresses that may be published or included in a relevant programme under subsection (12) above are addresses—

1. (a) at any relevant time, and
2. (b) at the time of their publication or inclusion in a relevant programme;

and "relevant time" here means a time when events giving rise to the charges to which the proceedings relate occurred.

(14) The following is relevant business information for the purposes of subsection (12) above—

1. (a) any address used by the accused for carrying on a business on his own account;
2. (b) the name of any business which he was carrying on on his own account at any relevant time;
3. (c) the name of any firm in which he was a partner at any relevant time or by which he was engaged at any such time;
4. (d) the address of any such firm;
5. (e) the name of any company of which he was a director at any relevant time or by which he was otherwise engaged at any such time;
6. (f) the address of the registered or principal office of any such company;
7. (g) any working address of the accused in his capacity as a person engaged by any such company;

and here "engaged" means engaged under a contract of service or a contract for services, and "relevant time" has the same meaning as in subsection (13) above.

(15) Nothing in this section affects any prohibition or restriction imposed by virtue of any other enactment on a publication or on matter included in a programme.

(16) In this section—

1. (a) "publish", in relation to a report, means publish the report, either by itself or as part of a newspaper or periodical, for distribution to the public;
2. (b) expressions cognate with "publish" shall be construed accordingly;
3. (c) "relevant programme" means a programme included in a programme service, within the meaning of the Broadcasting Act 1990.

Offences in connection with reporting.

11A.—(1) If a report is published or included in a relevant programme in contravention of section 11 above each of the following persons is guilty of an offence—

1. (a) in the case of a publication of a written report as part of a newspaper or periodical, any proprietor, editor or publisher of the newspaper or periodical;
2. (b) in the case of a publication of a written report otherwise than as part of a newspaper or periodical, the person who publishes it;

1. (c) in the case of the inclusion of a report in a relevant programme, any body corporate which is engaged in providing the service in which the programme is included and any person having functions in relation to the programme corresponding to those of an editor of a newspaper.

(2) A person guilty of an offence under this section is liable on summary conviction to a fine of an amount not exceeding level 5 on the standard scale.

(3) Proceedings for an offence under this section shall not he instituted in England and Wales otherwise than by or with the consent of the Attorney General.

(4) Subsection (16) of section 11 above applies for the purposes of this section as it applies for the purposes of that."

General.

7.—(1) This Schedule applies in relation to an offence if—

1. (a) proceedings for the trial on the charge concerned are transferred to the Crown Court on or after the appointed day. or
2. (b) a bill of indictment relating to the offence is preferred on or after the appointed day under the authority of section 2(2)(b) of the Administration of Justice (Miscellaneous Provisions) Act 1933 (bill preferred by direction of Court of Appeal, or by direction or with consent of a judge).

(2) References in this paragraph to the appointed day are to such day as is appointed for the purposes of this Schedule by the Secretary of State by order.").

The noble Baroness said: My Lords, this amendment was spoken to with Amendment No. 114. I beg to move.

On Question, amendment agreed to.

Schedule 2 [Modifications for Northern Ireland]:

Lord Mackay of Drumadoon moved Amendments Nos. 124 to 141.

Page 37, line 22, at end insert —

( ) paragraph 7 of the Schedule to the War Crimes Act 1991; or").

Page 37, leave out lines 27 to 37 and insert—

(""(1) This Part applies where a person is charged with an offence, the court proceeds to deal summarily with the charge and that person pleads not guilty.

(2) This Part also applies where—

1. (a) a person is charged with an indictable offence and —
1. (i) he is committed for trial on the charge concerned; or
2. (ii) a notice of transfer relating to the charge is given to the court;
2. (b) a count charging a person with a summary offence is included in an indictment under the authority of Article 193A of the Road Traffic (Northern Ireland) Order 1981 (offences relating to drink or drugs), or
3. (c) an indictment charging a person with an indictable offence is presented under the authority of section 2(2)(c), (d), (e) or (f) of the Grand Jury (Abolition) Act (Northern Ireland) 1969.

(2A) In subsection (2)—

• "indictable offence" means an offence which is triable on indictment, whether it is exclusively so triable or not;
• "summary offence" has the same meaning as in Article 193A of the Road Traffic (Northern Ireland) Order 1981."").

Page 37. line 46, at end insert ("paragraph 10 of the Schedule to the War Crimes Act 1991 or").

Page 37, line 48, at end insert ("or

(c) section 1(2)(c) applies and the prosecutor has served on the accused a copy of the set of documents containing the evidence which is the basis of the charge.").

Page 38, leave out lines 11 to 13.

Page 38, leave out lines 21 to 23 and insert—

("8. In section 14(3) for paragraphs (b) to (d) substitute—

1. "(b) the accused is committed for trial or the notice of transfer is given (where this Part applies by virtue of section 1(2)(a)),
2. (c) the count is included in the indictment (where this Part applies by virtue of section 1(2)(b)), or
3. (d) the indictment is presented (where this Part applies by virtue of section 1(2)(c))".").

Page 38, line 26, leave out from first ("a") to ("takes") in line 27 and insert ("hearing is a pre-trial hearing if it relates to a trial on indictment and it").

Page 38, line 30, at end insert—

("(1A) For the purposes of this Part a hearing is also a pre-trial hearing if

1. (a) it relates to a trial on indictment to be held in pursuance of an indictment presented under the authority of section 2(2)(c). (d), (e) or (f) of the Grand Jury (Abolition) Act (Northern Ireland) 1969, and
2. (b) it takes place after the indictment has been presented and before the start of the trial.").

Page 39, leave out lines 2 to 4 and insert—

("12. In section 44(6) omit paragraph (b) and in paragraph (c) for "section 1 of the Perjury Act 1911" substitute "Article 3 of the Perjury (Northern Ireland) Order 1979".").

Page 39, leave out lines 17 to 19 and insert—

("15.—(1) In section 48(1) omit paragraph (b) and the word "or" immediately before it.

(2) In section 48(11) omit paragraph (b).

15A. In section (Restriction on reporting of assertions)(1) for "Great Britain" where it twice occurs substitute "Northern Ireland".").

Page 39, line 19, at end insert—

(". In section (Television links and video recordings) for subsections (1) and (2) substitute—

"(1) In Article 81 of the Police and Criminal Evidence (Northern Ireland) Order 1989 (evidence through television links) the following paragraphs shall be inserted after paragraph (3) —

"(3A) Where the court gives leave under paragraph (2) for a witness falling within paragraph (1)(b)(ii) to give evidence through a live television link, then, subject to paragraph (3B), the witness concerned may not give evidence otherwise than through a live television link.

(3B) In a case falling within paragraph (3A) the court may give permission for the witness to give evidence otherwise than through a live television link if it appears to the court to be in the interests of justice to give such permission.

(3C) Permission may be given under paragraph (3B)—

1. (a) on an application by a party to the case, or
2. (b) of the court's own motion;

but no application may be made under sub-paragraph (a) unless there has been a material change of circumstances since the leave was given under paragraph (2)."

(2) In Article 81A of the Police and Criminal Evidence (Northern Ireland) Order 1989 (video recordings of testimony from child witnesses) the following paragraphs shall be inserted after paragraph (6)—

"(6A) Where the court gives leave under paragraph (2) the child witness shall not give relevant evidence (within the meaning given by paragraph (6D)) otherwise than by means of the video recording; but this is subject to paragraph (6B).

(6B) In a case falling within paragraph (6A) the court may give permission for the child witness to give relevant evidence (within the meaning given by paragraph (6D)) otherwise than by means of the video recording if it appears to the court to be in the interests of justice to give such permission.

(6C) Permission may be given under paragraph (6B)—

1. (a) on an application by a party to the case, or
2. (b) of the court's own motion;

but no application may be made under sub-paragraph (a) unless there has been a material change of circumstances since the leave was given under paragraph (2).

(6D) For the purposes of paragraphs (6A) and (6B) evidence is relevant evidence if—

1. (a) it is evidence in chief on behalf of the party who tendered the video recording, and
2. (b) it relates to matter which, in the opinion of the court, is dealt with in the recording and which the court has not directed to be excluded under paragraph (3).".").

Page 39, line 19, at end insert—

(".—(1) In section (Alibi) for subsection (1) substitute—

1. "(1) The Evidence of Alibi Act (Northern Ireland) 1972 shall cease to have effect."
2. (2) In section (Alibi) omit subsections (2) and (3).
3. (3) In section (Alibi) for subsection (4) substitute—
4. "(4) In Article 8(6) of the Criminal Justice (Serious Fraud) (Northern Ireland) Order 1988 (disclosure in cases involving fraud) in sub-paragraph (a) for the words "section 1 of the Evidence of Alibi Act (Northern Ireland) 1972" there shall be substituted the words "section 5(5) of the Criminal Procedure and Investigations Act 1996".").

Page 39, leave out line 20 and insert—

("16. In section 52(1) for "sections 42(3) and 44(7)" substitute "section 44(7)".").

Page 39, line 21, at end insert—

("17A. For Schedule (Fraud) substitute—

"SCHEDULE

FRAUD

Introduction

1. The Criminal Justice (Serious Fraud) (Northern Ireland) Order 1988 shall be amended as provided by this Schedule.

Notice of transfer

2. In Article 3 (transfer of certain fraud cases to the Crown Court) in paragraph (1)(b)(ii) for the words "seriousness and complexity" there shall be substituted the words "seriousness or complexity".

Preparatory hearings

3.—(1) Article 6 (power to order preparatory hearing) shall be amended as follows.

(2) In paragraph (1) for the words "seriousness and complexity" there shall be substituted the words "seriousness or complexity".

(3) Paragraphs (3) to (5) (power to make order that could be made at the hearing) shall be omitted.

4.—(1) Article 8 (the preparatory hearing) shall be amended as follows.

(2) In paragraph (7) (warning of possible consequence under Article 9(1)) the word "(1)" shall be omitted.

(3) In paragraph (10) for the words "at or for the purposes of a preparatory hearing" there shall be substituted "under this Article".

5. The following Article shall be inserted after Article 8—

"Orders before preparatory hearing

8A.—(1) Paragraph (2) applies where—

1. (a) a judge orders a preparatory hearing, and
2. (b) he decides that any order which could be made under Article 8(4) or (5) at the hearing should be made before the hearing.

(2) In such a case—

1. (a) he may make any such order before the hearing (or at the hearing), and
2. (b) paragraphs (4) to (10) of Article 8 shall apply accordingly."

6. The following Article shall be substituted for Article 9 (later stages of trial)—

"Later stages of trial

9.—(1) Any party may depart from the case he disclosed in pursuance of a requirement imposed under Article 8.

(2) Where—

1. (a) a party departs from the case he disclosed in pursuance of a requirement imposed under Article 8, or
2. (b) a party fails to comply with such a requirement,

the judge or, with the leave of the judge, any other party may make such comment as appears to the judge or the other party (as the case may be) to be appropriate and the jury may draw such inference as appears proper.

(3) In deciding whether to give leave the judge shall have regard—

1. (a) to the extent of the departure or failure, and
2. (b) to whether there was any justification for it

(4) Except as provided by this Article no part—

1. (a) of a statement given under Article 8(5), or
2. (b) of any other information relating to the case for the accused or, if there is more than one, the case for any of them, which was given in pursuance of a requirement imposed under Article 8,

may be disclosed at a stage in the trial after the jury have been sworn without the consent of the accused concerned."

Reporting restrictions

7. The following Articles shall be substituted for Article 10 (reporting restrictions)—

"Restrictions on reporting

10.—(1) Except as provided by this Article—

1. (a) no written report of proceedings falling within paragraph (2) shall be published in Northern Ireland;
2. (b) no report of proceedings falling within paragraph (2) shall be included in a relevant programme for reception in Northern Ireland.

(2) The following proceedings fall within this paragraph—

1. (a) an application under Article 5(1);
2. (b) a preparatory hearing;
3. (c) an application for leave to appeal in relation to such a hearing;
4. (d) an appeal in relation to such a hearing.

(3) The judge dealing with an application under Article 5(1) may order that paragraph (1) shall not apply, or shall not apply to a specified extent, to a report of the application.

(4) The judge dealing with a preparatory hearing may order that paragraph (1) shall not apply, or shall not apply to a specified extent, to a report of—

1. (a) the preparatory hearing, or
2. (b) an application to the judge for leave to appeal to the Court of Appeal under Article 8(11) in relation to the preparatory hearing.

(5) The Court of Appeal may order that paragraph (1) shall not apply, or shall not apply to a specified extent, to a report of—

1. (a) an appeal to the Court of Appeal under Article 8(11) in relation to a preparatory hearing,
2. (b) an application to that Court for leave to appeal to it under Article 8(11) in relation to a preparatory hearing, or
3. (c) an application to that Court for leave to appeal to the House of Lords under Part II of the Criminal Appeal (Northern Ireland) Act 1980 in relation to a preparatory hearing.

(6) The House of Lords may order that paragraph (1) shall not apply, or shall not apply to a specified extent, to a report of—

1. (a) an appeal to that House under Part II of the Criminal Appeal (Northern Ireland) Act 1980 in relation to a preparatory hearing, or
2. (b) an application to that House for leave to appeal to it under Part II of the Criminal Appeal (Northern Ireland) Act 1980 in relation to a preparatory hearing.

(7) Where there is only one accused and he objects to the making of an order under paragraph (3), (4), (5) or (6) the judge or the Court of Appeal or the House of Lords shall make the order if (and only if) satisfied after hearing the representations of the accused that it is in the interests of justice to do so; and if the order is made it shall riot apply to the extent that a report deals with any such objection or representations.

(8) Where there are two or more accused and one or more of them objects to the making of an order under paragraph (3), (4), (5) or (6) the judge or the Court of Appeal or the House of Lords shall make the order if (and only if) satisfied after hearing the representations of each of the accused that it is in the interests of justice to do so; and if the order is made it shall not apply to the extent that a report deals with any such objection or representations.

(9) Paragraph (1) does not apply to—

1. (a) the publication of a report of an application under Article 5(1), or
2. (b) the inclusion in a relevant programme of a report of an application under Article 5(1),

where the application is successful.

(10) Where—

1. (a) two or more persons are jointly charged, and
2. (b) applications under Article 5(1) are made by more than one of them,

paragraph (9) shall have effect as if for the words "the application is" there were substituted "all the applications are".

(11) Paragraph (1) does not apply to—

1. (a) the publication of a report of an unsuccessful application made under Article 5(1),
2. (b) the publication of a report of a preparatory hearing,
3. (c) the publication of a report of an appeal in relation to a preparatory hearing or of an application for leave to appeal in relation to such a hearing,
4. (d) the inclusion in a relevant programme of a report of an unsuccessful application made under Article 5(1),
5. (e) the inclusion in a relevant programme of a report of a preparatory hearing, or
6. (f) the inclusion in a relevant programme of a report of an appeal in relation to a preparatory hearing or of an application for leave to appeal in relation to such a hearing,

at the conclusion of the trial of the accused or of the last of the accused to be tried.

(12) Paragraph (1) does not apply to a report which contains only one or more of the following matters—

1. (a) the identity of the court and the name of the judge;
2. (b) the names, ages, home addresses and occupations of the accused and witnesses;

1. (c) any relevant business information;
2. (d) the offence or offences, or a summary of them, with which the accused is or are charged;
3. (e) the names of counsel and solicitors in the proceedings;
4. (f) where the proceedings are adjourned, the date and place to which they are adjourned;
5. (g) any arrangements as to bail;
6. (h) whether legal aid was granted to the accused or any of the accused.

(13) The addresses that may be published or included in a relevant programme under paragraph (12) are addresses—

1. (a) at any relevant time, and
2. (b) at the time of their publication or inclusion in a relevant programme;

and "relevant time" here means a time when events giving rise to the charges to which the proceedings relate occurred.

(14) The following is relevant business information for the purposes of paragraph (12)—

1. (a) any address used by the accused for carrying on a business on his own account;
2. (b) the name of any business which he was carrying on on his own account at any relevant time;
3. (c) the name of any firm in which he was a partner at any relevant time or by which he was engaged at any such time;
4. (d) the address of any such firm;
5. (e) the name of any company of which he was a director at any relevant time or by which he was otherwise engaged at any such time;
6. (f) the address of the registered or principal office of any such company;
7. (g) any working address of the accused in his capacity as a person engaged by any such company;

and here "engaged" means engaged under a contract of service or a contract for services, and "relevant time" has the same meaning as in paragraph (13).

(15) Nothing in this Article affects any prohibition or restriction imposed by virtue of any other enactment on a publication or on matter included in a programme.

(16) In this Article—

1. (a) "publish", in relation to a report, means publish the report, either by itself or as part of a newspaper or periodical, for distribution to the public;
2. (b) expressions cognate with "publish" shall be construed accordingly;
3. (c) "relevant programme" means a programme included in a programme service, within the meaning of the Broadcasting Act 1990.

Offences in connection with reporting

10A.—(1) If a report is published or included in a relevant programme in contravention of Article 10 each of the following persons is guilty of an offence—

1. (a) in the case of a publication of a written report as part of a newspaper or periodical, any proprietor, editor or publisher of the newspaper or periodical;
2. (b) in the case of a publication of a written report otherwise than as part of a newspaper or periodical, the person who publishes it;
3. (c) in the case of the inclusion of a report in a relevant programme, any body corporate which is engaged in providing the service in which the programme is included and any person having functions in relation to the programme corresponding to those of an editor of a newspaper.

(2) A person guilty of an offence under this Article is liable on summary conviction to a fine of an amount not exceeding level 5 on the standard scale.

(3) Proceedings for an offence under this Article shall not be instituted otherwise than by or with the consent of the Attorney General for Northern Ireland.

(4) Paragraph (16) of Article 10 applies for the purposes of this Article as it applies for the purposes of that."

General

8.—(1) This Schedule applies in relation to an offence if—

1. (a) the accused is committed for trial on the charge concerned, or proceedings for the trial on the charge concerned are transferred to the Crown Court, on or after the appointed day, or
2. (b) an indictment relating to the offence is presented on or after the appointed day under the authority of section 2(2)(c), (e) or (1) of the Grand Jury (Abolition) Act (Northern Ireland) 1969.

(2) References in this paragraph to the appointed day are to such day as is appointed for the purposes of this Schedule by the Secretary of State by order.").

Page 39, line 24, at end insert—

(" 1. ALIBI ").

Page 39, line 35, at end insert—

("1995 NI 3.

The Children's Evidence (Northern Ireland) Order 1995.

In Schedule 2, paragraph 6.").

Page 39, line 36, leave out ("1(3)") and insert ("(Alibi)").

Page 39, line 36, at end insert— (" 2. FRAUD

Chapter or number	Short title	Extent of repeal
1988 NI 16.	The Criminal Justice Article 6(3) to (5). (Serious Fraud)(Northern Ireland) Order 1988.	Article 6(3) to (5)
		In Article 8(7) the word "(1)".
1990 c. 42.	The Broadcasting Act 1990.	In Schedule 20, paragraph 50.

These repeals have effect in accordance with Schedule (Fraud) to this Act.").

The noble and learned Lord said: My Lords, all these amendments concern the application of the Bill to Northern Ireland. They amend Schedule 2, which in turn modifies the way the Bill operates in relation to Northern Ireland, taking account of the different statutory framework there. For the most part, the amendments correspond entirely in their purpose to those already approved by your Lordships' House in respect of England and Wales. Unless your Lordships wish to raise particular points, I do not wish to detain the House by seeking to explain them in detail.

However, I should draw attention to paragraphs 2 and 3(2) of the schedule relating to fraud in Northern Ireland. It is proposed to substitute this for the schedule that your Lordships have already approved in respect of England and Wales. It is largely to the same effect, but it also widens the scope of the provisions on notices of transfer and preparatory hearings by permitting them to be held in any case of fraud of sufficient seriousness or complexity. The criterion at present is "seriousness and complexity". Similar amendments, which follow a recommendation of the Royal Commission on Criminal Justice, have already been made in the England and Wales provisions of the Criminal Justice and Public Order Act 1994. I beg to move.

On Question, amendments agreed to. Schedule 3 [Repeals]:

Baroness Blatch moved Amendments Nos. 142 and 143: Page 40, leave out lines 3 to 11.

Page 41, line 14, at end insert—

("7. ALIBI

Chapter	Short title	Extent of repeal
1967 c. 80.	Criminal Justice Act 1967	Section 11.
1980 c. 43.	Magistrates' Courts Act 1980.	In Schedule 7, paragraph 64.
1987 c. 38.	Criminal Justice Act 1987	In Schedule 2,paragraph 2.
1994 c. 33.	Criminal Justice and Public Order Act 1994.	In Schedule 4, paragraph 15(3). In Schedule 9, paragraphs 6(2) and 7.

These repeals have effect in accordance with section (Alibi) of this Act.").

The noble Baroness said: My Lords, these amendments were spoken to with Amendment No. 140. I beg to move.

On Question, amendments agreed to.

Baroness Blatch moved Amendment No. 144:

Page 41, line 14, at end insert—

("8. FRAUD

Chapter	Short title	Extent of repeal
1987 c.38.	Criminal Justice Act 1987.	In section 7,subsections (3) to (5).
		In section 9(7), the word "(1)".
1988 c.33.	Criminal Justice Act 1988.	In Schedule 15, paragraph 114.
1990 c.42.	Broadcasting Act 1990.	In Schedule 20, paragraph 47.")

These repeals have effect in accordance with Schedule (Fraud) to this Act.").

On Question, amendment agreed to.

House adjourned at thirteen minutes past nine o'clock.