§ 1.40 p.m.
§ Baroness Byford
My Lords, I beg to move that this Bill he now read a second time.
The Bill now before your Lordships is a relatively complex solution to a readily understandable problem. That problem is the misuse by defendants and others of statements and photographs of victims of sexual offences. These statements and photographs of victims in sexual offence cases often contain intimate details of both the victim and the offence itself. Victims' statements, photographs of victims and medical reports on the physical condition of the victims of sexual offences will all become protected material under this Bill. Material of this kind has been used as pornography and passed round prisons to other inmates unconnected with the case. On occasion it has even been circulated by defendants and relatives outside prison in an attempt to intimidate the victim during legal proceedings.
These practices are evil and the Bill will put an end to them. If the Bill is complex it is because it must allow a defendant to examine material while at the same time preventing the possibility of that material being used for nefarious purposes.
The Bill provides a supervised access regime which would confer automatic protection on a victim's statement (written or recorded on video, audio or other media), photographs and pseudo-photographs and medical examination reports of the victim's physical condition.
The material covered by this scheme relates only to sexual offences because it is the misuse of this material in such cases that has caused the greatest concern. The range of offences covered by the Bill is set out in Schedule 1 to the Bill. They include any attempt, incitement or conspiracy to commit these offences.
1454 The scheme in this Bill is designed to prevent the defendant from keeping a copy of the protected material, although he would be able to have full access to it under supervision. This means that he could not have it in his possession to show others as pornography or to copy and circulate further. To prevent the defendant from obtaining unsupervised access from other sources, no one else would be allowed to see the material except under strict conditions.
For the vast majority of defendants who are legally represented supervised access to protected material would be provided by their legal representatives, whether or not the defendants were in custody. The legal representative would be required to take reasonable steps to ensure that the material was not shown to the defendant other than in circumstances in which there was adequate supervision to ensure that the defendant could not keep it or make copies. The legal representative would also undertake to make sure the material was not shown to another person other than the defendant, except where the legal representative thought it necessary in connection with any relevant proceedings or for the purposes of assessment or treatment of the defendant.
In the comparatively rare case of a defendant in a sexual offence case not wishing to have legal representation, access to protected documents would be provided by the police or the Prison Service, depending on whether the defendant was on bail or in custody. The defendant would be told that the material was subject to the regime and that it would be an offence for him to have it in his possession but that arrangements would be made for him to have access to it under supervision at the local police station if on bail or in prison if in custody. The scheme provides for the defendant to have such supervised access that he reasonably requires for the purpose of preparing his defence, appeal or any other criminal proceedings.
If the scheme is to be effective it must he capable of being enforced. The Bill makes it an offence for the defendant or any other person to whom the protected material is given to breach the requirements of the regime. In the event of an alleged breach, it would be for that person to show that he did not know or suspect or have reason to suspect that the material was subject to the regime. The maximum penalties for a breach would be imprisonment for two years or a fine or both. The court would be able to order the return of the material to the prosecutor. There would be a right of appeal in the normal way against conviction and any order requiring the return of the material.
I turn briefly to the main provisions of the Bill. Clause 1 defines protected material as including copies of victim statements, photographs, pseudo-photographs and medical reports of victims which are disclosed by the prosecutor in sexual offence cases. Clause 3 provides for the prosecutor to disclose material in one of two ways. If the defendant has a legal representative who is willing to give the undertaking to supervise the defendant's access to the material then the prosecutor will give a copy of the protected material to the 1455 defendant's legal representative. If not, the prosecutor will give the material to the appropriate person to disclose to the defendant under supervised conditions.
Clause 4 describes in more detail the undertaking by the defendant's legal representative. Not only must he show the material only to the defendant in supervised circumstances but he must also provide that material to third parties only if it is necessary for the purposes of the legal proceedings or for the treatment of the defendant. He must inform anyone to whom he gives the material that it is protected material and that it would be an offence to pass it on to any other person.
Clause 5 defines the appropriate person to reveal protected material to an unrepresented defendant. If the defendant is in custody then the appropriate person is the prison governor or his nominee. If the defendant is not in custody the appropriate person is the officer in charge of a suitable police station or his nominee.
Clause 6 provides for the prosecutor further to disclose protected material if this is necessary because a legal representative dies or an unrepresented defendant acquires a legal representative.
Clause 7 provides for the Criminal Cases Review Commission to disclose material to an applicant in the same way that the prosecutor discloses material to a defendant. The commission will be responsible for disclosing material to the defendant where it declines to refer a case to the Court of Appeal. Clause 8 creates offences of possessing protected material and passing the protected material to others except as allowed by the Bill.
The Bill does not prevent a defendant from having access to the material which he must have in the interests of justice, to prepare his defence. A defendant will be able to examine protected material, but his examination will be supervised to prevent his retaining the material or making a verbatim copy of it. The defendant will be allowed to make manuscript notes of parts of the material in order to prepare his defence, but it will be an offence to pass these notes to others.
The Bill is designed to prevent the misuse of material relating to victims of sexual offences while at the same time protecting the rights of defendants. I believe that it contains a workable solution to end a scandalous practice. I beg to move.
Moved, That the Bill be now read a second time.—(Baroness Byford.)
§ 1.50 p.m.
§ Lord Monson
My Lords, this is an admirable Bill, most effectively introduced, and clearly long overdue. I suspect that most of us were unaware of the way in which this unpleasant material circulates in our prisons to the obvious added distress of the victims of sex crime. There is only one thing wrong with it: its great benefits do not extend to the whole of the UK. Why that should be, I do not know. Surely it is not beyond the wit of the lawyers and draftsmen in the Home Office, the Scottish Office and the Northern Ireland Office to ensure that the benefits of the Bill extend to the whole country.
1456 Without some such relatively speedy action, victims whose attackers happen to be incarcerated in Scottish or Northern Irish prisons will go on suffering to some extent, mentally even if not physically. Clearly a Committee stage amendment to try to rectify that would fall foul of the fact that it is late in the Session, and might jeopardise the Bill's passage. That is the very last thing that we should wish. Better that the benefits of the Bill extend to England and Wales than to nowhere at all.
Could the Minister say whether the Government will do their best to try to see that the Bill's benefits are extended to Scotland and Northern Ireland at some point? It would also be nice if the noble Lord, Lord McIntosh of Haringey, could guarantee, if his party comes to power in a couple of months' time, that Labour will do its best to ensure that the benefits are extended to the UK as a whole.
§ 1.52 p.m.
§ Lord McIntosh of Haringey
My Lords, this is a good Bill which was ably introduced. In responding to the two previous Private Members' Bills I did not make the usual proviso that I speak personally and not on behalf of my noble friends. There is a good reason for that: these are not really Private Members' Bills; they are Home Office Bills. Under those circumstances it is perfectly proper for the Opposition to speak formally as the Opposition. Having done that, I shall repeat my sour note: these should not be Home Office Bills. The Private Members' Bills procedure should be used for Bills whose origin is not the Government's. It is an abuse of the Private Member's Bill procedure to have synthetic Bills of this sort.
The Bill addresses a narrow but important issue, as the noble Baroness said. It is not one that is new. The Home Office itself produced a consultation paper on the problem in 1991 without reaching a firm conclusion about how to tackle the problem. The Runciman Royal Commission reporting in 1993 addressed the problem, and again was not clear about the solution to it, although I think that the response of the Law Society to the Royal Commission came close to describing the kind of protection which is offered by the Bill.
In the proceedings of the Criminal Procedure and Investigations Bill in this House only a year ago (19th February 1996) my noble friend Lord Williams of Mostyn moved Amendment No. 19 which was, in a single new clause, an attempt to address this problem. He was supported in that by my noble friend Lady Mallalieu and the noble Lord, Lord Carlisle of Bucklow. In her response, the Minister, the noble Baroness, Lady Blatch, properly referred to the need for any measure of this kind to accord with the general principles of open justice and indeed our international obligations to ensure that defendants have access to the material they properly need in order to present their defences. There is no reference to international obligations in the Bill, but it would be useful if, in responding, the noble Earl could record, as I hope that he will be able to, that the Government believe that we are meeting our international obligations by the way in which the Bill is drafted.
1457 The noble Baroness, Lady Blatch, had a number of objections to my noble friend's amendment which was in the end withdrawn. Again, I would be grateful if the noble Earl, in responding for the Government, could confirm that the Bill meets the objections which were raised. The noble Baroness's first objection was that my noble friend's proposal for the prosecution to apply for an order restricting access to this material was a burden upon the prosecution. I understand the Bill to say that, instead of the prosecutor having to apply for an order, the prosecutor discloses material but only when suitable undertakings about restricted access have been given.
The noble Baroness referred to the need to make provision for unrepresented defendants. I understand that Clause 4, in designating the prison governor or the officer in charge of the police station, meets that point. She referred to the lack of a penalty, although my noble friend, I think rightly, in reply said that the penalty could perfectly well have been a contempt of court penalty; but it is true that the Bill provides for specific criminal penalties.
So, after at least six years of discussion, we appear to have come up with a solution of supervised access which seems to be acceptable. I have a tiny point on the explanatory and financial memorandum. Although it is called the Sexual Offences (Protected Material) Bill, the memorandum refers to:Proceedings relating to specified sexual and other offences".I should like to know what is meant by "other offences" when the Bill's Short Title and its schedule are specific about it being restricted to sexual offences.
I shall not repeat the arguments for the Bill's necessity, which were made by the noble Baroness, Lady Byford, and had been made last year by my noble friend Lord Williams. It is clearly highly undesirable that pornography of this kind, normally violent pornography, should be circulated inside or outside prison, using what has been a loophole in our criminal procedures. We welcome this attempt to block that loophole.
§ 1.58 p.m.
The Earl of Courtown
My Lords, I support and congratulate my noble friend Lady Byford who has moved the Second Reading of the Bill. I am glad also that she has the support of the noble Lord, Lord McIntosh of Haringey.
The Bill gives statutory effect to proposals which we announced last year and which were very widely welcomed. I believe that it will make a real contribution to the fight against this dreadful crime.
I should like to begin by placing the Bill in the context of the Government's general strategy for dealing with sex offenders. A number of recent tragic cases have brought home to us all the risks posed, particularly to children, by sex offenders, and there is a clear need for additional measures to strengthen the arrangements already in place to protect the public against them. We are taking a number of steps to improve that protection. For example, the Crime (Sentences) Bill provides that all sex offenders will receive extended supervision after 1458 release for a minimum of 12 months or 50 per cent. of the sentence, extendable up to 10 years at the court's discretion.
The Sex Offenders Bill contains two main proposals, both of which are intended to protect children from sexual abuse. First, it imposes a requirement on those convicted of sexual offences against children and other serious sexual offences to register their name and address, and any subsequent changes, with the police. Secondly, it makes it an offence for UK residents to commit sexual acts against children abroad.
The third government measure is the Protection from Harassment Bill. This provides protection against stalking, a phenomenon that may often have a sexual element sometimes directed against child victims.
We are also supporting an important Private Member's Bill, the Criminal Evidence (Amendment) Bill. This Bill extends police powers to obtain DNA tests for all convicted sex offenders still serving a sentence.
As well as these legislative measures, we published proposals last month for a prohibition on sex offenders seeking employment with children. Copies of the proposals were placed in the Library. That was one of the elements discussed in the consultation document we issued last year entitled Sentencing and Supervision of Sex Offenders. It received widespread support, but it was clear from the comments received that further work was necessary to develop an effective scheme. The results of that work are contained in the paper published last month jointly by the Home Office and the Scottish Office.
I turn now to the Bill introduced by my noble friend. It contains proposals for a statutory scheme to provide defendants in sexual offence cases with supervised access to sensitive victim statements, photographs and pseudo-photographs, and medical reports. This type of material often contains detailed and intimate information about the victim and the crime. Defendants have previously used and circulated such material to others as a form of pornography. Such misuse causes great distress to victims and their families. It may also discourage victims from reporting crime and so make more difficult the task of providing the public with better protection from sex offenders.
Action to tackle the problem raises fundamental issues about the rights of defendants to know the evidence against them, and the rights of victims to protection from further distress by the misuse of their statements or photographs of them.
In 1991 the Home Office issued a consultation paper, as mentioned by the noble Lord, Lord McIntosh, which set out a number of options, statutory and voluntary, for tackling the problem. But no consensus emerged on how best to proceed. The Royal Commission on Criminal Justice subsequently recommended, in its report published in 1993, that in sexual offence cases defendants should be required to return victims' statements to the instructing solicitor at the end of the case. We took the view that such an approach would not provide an effective solution because defendants would be able to misuse statements or photographs, and take 1459 copies of them, during the proceedings. Any scheme must provide immediate and certain protection for material of this kind throughout the proceedings and with the minimum disruption to the normal conduct of the case.
The noble Lord, Lord McIntosh, mentioned the amendment tabled last year to the Criminal Procedure and Investigation Bill. I know that the party opposite shares the view of the Government that action is needed to tackle the misuse of victim statements and other material. The amendment tabled at Third Reading in this House would have allowed the prosecutor, in any case, to apply to the court for an order restricting access by the defendant to a statement or photograph if he reasonably believed that it might be misused.
The Government acknowledged the spirit in which the amendment was moved but was unable to support it. We believed that there should be a clear category of material which would be protected automatically without the procedure of having to make an application to a court. An application procedure would involve prosecutors and the courts expending a great deal of effort to identify material to be protected. We also believed that any measures should be targeted at helping victims of sexual offences, including children. That is where there is the greatest potential for misuse of material of this kind. Finally, the amendment was silent on the critical issue of disclosure to the unrepresented defendant. There were no provisions for the enforcement of the scheme.
Those concerns were expressed earlier in the debate by the noble Lord, Lord McIntosh. As he said, the unrepresented defendant will be shown the material by the governor or the police in charge of the case. Penalties for misuse exist in the form of fines. I can confirm that what the noble Lord said was correct. The Bill introduced by my noble friend Lady Byford overcomes the difficulties inherent in the amendment tabled last year and the Government are pleased to support it.
The noble Lord, Lord Monson, raised two important issues concerning Scotland and Northern Ireland. My information indicates that the legal system is very different in Scotland. Investigation is conducted by the defence, so it is not the same system of disclosure of material by the Crown to the defendant as in England and Wales.
I am told that consultation in Northern Ireland revealed no specific evidence of any particular problem in relation to the misuse of victims' statements. However, I will pass the noble Lord's comments to my right honourable friend, so perhaps the issue can be kept in mind.
§ Lord McIntosh of Haringey
My Lords, before the noble Earl leaves that point, perhaps I may give the assurance asked for by the noble Lord, Lord Monson, that I will pass his comments to my honourable friend 1460 Jack Straw. I shall bring to his attention the request of the noble Lord, Lord Monson, that the Bill should be extended to cover Scotland.
The Earl of Courtown
My Lords, I am so glad that the noble Lord, Lord McIntosh, is passing the noble Lord's comments to his honourable friend.
In conclusion, the Bill is entirely consistent with the Government's general strategy for dealing with sex offenders. It provides an effective means of tackling the misuse of victims' statements and other material in sex offence cases and I hope that the House will give it a Second Reading.
§ 2.6 p.m.
§ Baroness Byford
My Lords, I thank noble Lords who have participated in this short debate. We are all most anxious about the loopholes in the law which have existed for some time. It is important that we protect the victims, in particular children. Those of us who have children—in my case, grandchildren—will he only too well aware of the heart-rending that has been caused by those loopholes. I take on board the point made by the noble Lord, Lord Monson, that the legislation should cover the whole country and I shall look into that further. With those few comments, I ask that the Bill be given a Second Reading.
On Question, Bill read a second time, and committed to a Committee of the Whole House.