§ 5.4 p.m.
§ Second Reading debate resumed.
§ Lord Warner
My Lords, as chairman of the Youth Justice Board for England and Wales, I start by saying that the board strongly supports the reforms to the youth courts set out in Part I of the Youth Justice and Criminal Evidence Bill. In his excellent maiden speech, the noble Earl, Lord Rosslyn, drew attention to the pioneering work on restorative justice by Thames Valley Police. 1267 That work has been led by the noble Earl's chief constable who is making a distinguished contribution to the work of the Youth Justice Board.
The creation of the new referral order will provide an opportunity to undertake positive interventions to prevent offending with those youngsters who appear before a court for the first time and plead guilty. At present it is difficult, if not impossible, for youth courts to develop individually-tailored packages of interventions designed to stop offending.
By using the new referral order, the youth courts will be able to get the new youth offender panels to agree detailed programmes for change with young offenders and their parents. The embodiment of those programmes in a contract means that young offenders will have to face up to their responsibility for the harm that they have caused to victims. They will be committing themselves to change. Often this is difficult for some young offenders. There will be opportunities for victims to play a part in this process if they wish. Some victims will find it helpful, as I believe the experience on restorative justice within Thames Valley has shown.
The new contracts are no soft option. Clause 8 of the Bill makes it absolutely clear that youth offender contracts are likely to have many demanding provisions. The contracts can last up to a year. If youth offenders decline to reach agreement or fail to stick to them, they can be sent back to the courts for sentencing. That is as it should be if the new arrangements are to maintain public credibility.
It is right that the new arrangements should start with young offenders who appear in court for the first time and plead guilty. But if they are successful, as I expect them to be, we should not shy away from extending them to other young offenders. I welcome therefore the provision in Clause 2 that gives the Home Secretary power to extend referral orders to a wider group of young offenders at a later stage.
The Youth Justice Board welcomes the Bill's provision for the leading role to be played by youth offending teams in the work of youth offender panels and the drawing up and supervision of youth offender contracts. These teams are an important part of the new local infrastructure in the fight against crime. They are being piloted in nine parts of the country now and by April 2000 they will be fully operational across England and Wales. The board will produce national standards for the teams and devise arrangements for monitoring and inspecting their performance.
The managers of youth offender teams will be critical to the success not only of the youth justice changes in this Bill but of the wider youth justice reforms under the Crime and Disorder Act. As local areas make their appointments in the coming months, we hope that they will give their managers a high status and direct access to local authority chief executives and other chief officers so that the services and measures needed to stop youth offending locally are provided. For its part, the Youth Justice Board has decided that there should be a national training and development programme for all the 1268 managers of youth offender teams. We shall make sure that that training adequately covers their duties under the Bill.
I now comment on Part II of the Bill, which is concerned with protecting vulnerable witnesses. In doing so, I draw on my experience as a director of social services and of leading a number of inquiries into children's homes and a long-stay hospital for people with learning disabilities. I have had to sack staff after inquiries into the sexual abuse of young people and people with learning disabilities. Those inquiries had a lower standard of proof than a criminal court, but it was often difficult to get people to take seriously the evidence of children and those with learning disabilities. Too often I have seen the same culture of disbelief in the criminal justice system. The painstaking investigations of police officers and social workers can too often come to nothing because of the insensitivity and rigidity of the criminal justice system.
There are particular shortcomings in respect of sexual offences. A significant proportion of rapes and indecent assaults are committed against children. The Home Office has estimated that half of those convicted of rape are convicted of raping a child aged under 16. We know that many paedophiles go undetected for a long time and abuse large numbers of children. Evidence by the charity, Kidscape, in 1995 suggested that each paedophile abused on average about 240 children before being caught. It is also worth bearing in mind that one in three children who reports sexual abuse is under the age of eight, but prosecution in such cases is 5 per cent. or lower.
There has been a disturbing decline in the number of successful prosecutions for sexual offences against children, as Home Office statistics have shown; for example, in 1985, there were 633 offences of gross indecency with children under 14 notified to the police and a 42 per cent. conviction rate. In 1995, the number of offences doubled to 1,287, but the conviction rate plummeted to 12 per cent.; all this in a period when it should have been easier for the courts to use video evidence from child witnesses.
It is nearly 10 years since the Pigot Committee made its recommendations on the admissibility of video-recorded evidence to the noble Lord, Lord Hurd, when he was Home Secretary. But despite legislative action on some of the Pigot recommendations, the criminal justice system has been slow to adopt those important reforms. A Home Office Police Research Group Report in 1996 found:There now appears to be considerable reluctance on the part of judges to allow video interviews to be used".I am only too aware of the impact on an abused child of having to give evidence in a hostile court environment. Imagine what it must be like for a 10 or 11 year-old who has been sexually assaulted to go over that experience again in court and then not be believed at the end of it. If properly implemented by the courts, the measures in Part II of the Bill will go a long way to improve the situation of child witnesses, particularly the provision on admission of video recorded interviews as evidence in chief.
1269 I know that some in the judiciary do not consider that these measures are necessary and believe that the courts have all the powers they need to intervene to protect vulnerable witnesses. I ask those judges who hold that view to look very seriously at the evidence I have set out of court performance in the past decade and to consider honestly whether the evidence suggests that abused children have had fair treatment as witnesses. Too many offenders have gone free and too many children have suffered unnecessary trauma as a result of the shortcomings of the criminal justice system. Raped women's previous sexual history has been allowed to be trawled inappropriately through the courts.
The measures in Part II will put beyond doubt Parliament's determination that vulnerable children and others who have been abused should be given adequate protection by the courts but without detriment to the rights of defendants. For those changes to work in practice, however, they will need to be supported by effective training programmes that all judges attend to ensure that the will of Parliament is applied in practice.
Some authoritative voices concerned with the protection of children would go further than this Bill. Sir William Utting, for example, made more radical proposals in his 1997 report of the review of the safeguards for children living away from home. However, I believe that the Government have struck the right balance with the measures on vulnerable witnesses in this Bill, provided that the courts use them properly.
Part II of this Bill is about fairness: fairer treatment of abused children; fairer treatment of people with learning difficulties and of women who have been raped. Those groups have often been poorly served by our criminal justice system and that is why organisations like Victim Support, of which the noble Lord, Lord Windlesham, is a distinguished president, have given these measures such a warm welcome. I hope they have the full support of this House.
§ 5.14 p.m.
§ Lord Bingham of Cornhill
My Lords, there is much in this Bill for which to be grateful. If your Lordships had any doubt about that, I feel sure that it would have been dispelled by the lucid and compelling speech which we had the pleasure of hearing from the noble Earl, Lord Rosslyn, whose informed experience will undoubtedly enrich our future deliberations.
I hope that I shall not be thought ungrateful if I confine my remarks to two sets of provisions which cause me serious misgivings. I fear that neither will cause the Minister surprise. They are both to be found in Part II in Chapters II and III. One of them is headed,The protection of witnesses from cross-examination by accused in person",and the second is headed,Protection of complainants in proceedings for sexual offences".At the risk of stating the obvious, I remind the House of the background. We are dealing with a situation in which a defendant, usually, but not always, a man, is accused of what may be a very serious offence against a complainant, who is usually, but not always, a woman. The situation is by definition one in which the defendant 1270 says that he did not commit the crime. Therefore, there is a trial in order for the court or the jury, and no one else, to decide whether the defendant did commit the crime.
If convicted, the defendant is likely, if it is at all a serious crime, to go to prison for a very long time because the courts take a serious view of offences such as that. It is plainly right that everything which can reasonably be done to encourage victims to disclose genuine complaints should be done. It is plainly right also that everything which can reasonably be done to minimise the trauma of attendance at court and giving evidence should be done. I suggest that no one questions those propositions for one instant. I certainly do not.
But the paramount concern in that context must be to ensure that the defendant enjoys a fair trial, recently described as the birthright of every British citizen. No doubt the Minister is right to say that that is not an absolute right, but he went on to say that there were others who have rights coterminous with those of a defendant. I suggest that at a criminal trial no one has rights coterminous with those of the defendant because it is he alone who is at risk of being punished by the state.
Clause 33 imposes an absolute prohibition on any person charged with a sexual offence from himself asking any question of a complainant with regard to the offence charged or any other offence. That is usually not a problem. The defendant is offered criminal legal aid, which is almost always free, and the vast majority of defendants, as one would expect, take advantage of it.
The situation with which we are concerned arises only when a defendant has chosen to act in person, perhaps because he distrusts or dislikes lawyers, as many people no doubt understandably do, or perhaps because he thinks he can do the job better himself.
As I have said, that is usually not a problem. Indeed, there are only two cases in which there has been a problem and both have been mentioned by the Minister. In the first, the defendant was named Ralston Edwards. That case, which was, I believe, about two years ago, received very wide coverage and there is no doubt that the defendant abused his right as a defendant representing himself. He dominated, humiliated and abused the complainant in a way that was utterly abhorrent and totally objectionable.
The case received wide coverage and that may have given the idea of emulating this feat to the second individual involved, Milton Brown. He indulged in the same behaviour. The trial judge made great efforts to control the trial and the defendant's behaviour but felt that he lacked the powers to be as robust as he would have wished and was doubtful as to whether the Court of Appeal would support him if he acted in the robust way that he would have chosen.
The defendant was convicted and appealed unsuccessfully. In the course of giving judgment, the Court of Appeal indicated, in what I hope were clear and unambiguous terms, that judges had full power and authority to take command of a situation such as this and prevent the unacceptable treatment of a complainant by using screens and a number of other methods 1271 discussed in some detail in the judgment. The court made plain that it would support a judge who acted in a robust way unless, of course, an injustice was shown to have resulted. That was in May 1998. There has been no repetition and there are no other instances of what it is here sought to prohibit. I submit that it is surely wise to wait and see if a further remedy is needed before depriving judges of the discretion to control proceedings in their courts—fortified by that judgment—in the way that they think best.
I suggest that the proposed provision has two dangers: unjust conviction and unjust acquittal, both almost equally undesirable. There is a risk that juries may wrongly convict because they have not heard the complainant cross-examined. There is a risk that juries may wrongly acquit because they will feel that the defendant has not had a fair crack of the whip. That danger is not cured by Clause 37, which enables the court to appoint a legal representative chosen by the court to cross-examine the complainant. Of course, it is fine if the defendant, who has been obdurate and intransigent up until then, has a conversion on the road to Damascus and becomes co-operative and communicative with the legal representative appointed without his wishes. But if he maintains his position, persists in his desire to cross-examine the complainant himself and declines to give instructions to the legal representative, the latter's task becomes impossible. The legal representative will not know which parts of the complainant's evidence he should be challenging and he will not know the case that he is intended to put. It is difficult to know what the warning to the jury under Clause 38 will achieve unless it is a simple encouragement to acquit. So, on that point I have misgivings.
I have similar misgivings about the provision in Chapter III. I am sure that your Lordships will know that Dame Rose Heilbron, who brought unrivalled experience of dealing with crime and family matters to the task, chaired an advisory group on the law of rape about 20 years ago. She and her group made a recommendation, which was accepted and enacted as Section 2 of the Sexual Offences (Amendment) Act 1976, applicable to rape trials. The provision states that, except with the leave of the judge, no evidence and no question in cross-examination shall be adduced or asked at the trial by or on behalf of any defendant about any sexual experience of a complainant with a person other than the defendant.
That strikes one as a good and well-designed provision. What more is needed? To answer that question, one must look at paragraph 9.64 of the consultation paper Speaking up for Justice. That states that the working group reported overwhelming evidence that the present practice in the courts is unsatisfactory and that the existing law is not achieving its purpose.
If there is such overwhelming evidence, the consultation paper is noticeably reticent in giving the details. It refers to some research carried out nearly 10 years ago which shows that 75 per cent. of applications made under that section succeed. That may mean that 1272 applications are lightly made and lightly granted, but it may equally mean that applications are cautiously and prudently made and properly granted, in the main.
There is a great deal of anecdote about this, but if one is to add to the mountain of it, I can tell your Lordships that at a Judicial Studies Board seminar for judges who specialise in this field, the suggestion that this provision was disregarded provoked a vocal expression of strong disagreement. The simple truth is that on an issue of whether a complainant consented to sexual relations with the defendant, the fact that the complainant has behaved promiscuously on other occasions outside the window of 24 hours before and after the commission of the offence may well—I emphasise "may well"—be relevant. So, to recognise is not to open the door to abusive, insulting, irrelevant cross-questioning, which, in any event, is likely to repel any decent modern jury, but to recognise what many sensible decent jurors would consider a question that may be relevant in some cases.
The Criminal Procedure (Scotland) Act 1995 restricted the questioning of complainants in such cases. Parliament went on to provide that the questioning or evidence could be allowed if the court were satisfied that it would be contrary to the interests of justice to exclude it. That is provided for in Section 275(1)(c) of that Act. In other words, Parliament gave the Scottish judges a limited discretion to be exercised in the interests of justice. It is a melancholy reflection on parliamentary confidence in the judiciary of England and Wales if they are to be denied a similar, very limited and carefully defined discretion.
I hope that the Minister, who has promised to be open minded and has been so in the past, will be willing to think again on both these points.
§ 5.28 p.m.
§ Baroness Macleod of Borve
My Lords, it is now my turn to follow some brilliant speakers. I also have the honour of following the noble and learned Lord the Lord Chief Justice and my noble friend Lord Windlesham, who was chairman of the Parole Board when I was a member—and a very distinguished chairman he was, too. I should also like to mention the noble Lord, Lord Warner. I listened with great interest to all that he had to say and I shall read his speech.
I must disclose an interest in the Bill. For 20 years I was a member of the lowest tier of the judicial system, the magistracy, dealing with both adults and juveniles. I was a chairman for some time. I apologise to the noble Lord, Lord Williams of Mostyn. I was present below Bar but could not get into the Chamber while he was speaking. I retired from the Bench when I had to move house. I am pleased that I have not been involved in the Bill because it appears to be very complicated and full of repetition. It is so difficult to understand that I fear for those magistrates who must try to implement what is undoubtedly intended to be good and worth while legislation.
Prevention is always better than cure. Part of the Bill is related to the prevention of crime. The way in which parents bring up their children creates adult men and women. If parents allow their children to engage in 1273 crime, we shall have more and more criminal men and women. Sometimes parents go to court and try to deny the charges brought against their children. I remember only too well a father appearing for the fourth time with his son who was committing burglaries. Indeed, the father had pushed the son through the lavatory window in order to burgle. When the son appeared before me for the fourth time, I asked, "Mr. Brown, what are you doing here again?". He said. "Well, your Majesty, I am trying to keep him out". The father somehow thought that I would be pleased to be called "your Majesty". How wrong he was. If the referral system had existed in those days, we might have kept that young man on the straight and narrow path. It would have been a gamble, but with a father who pushed him through windows in order to burgle it would have been difficult for him to grow up "straight".
I turn to parental advice and the way in which parents bring up, drag up and push up their children, and to local authorities and schools. I dealt with many young people when I was a member of a Bench on the outskirts of London. There were five courts sitting five days a week and it was difficult to keep a proper balance between all the juveniles in the area. It was a good area and on the whole they turned out to be reasonable people. I wish to make a serious comment about the publicity aspect, which has not yet been mentioned. So many parents take great pleasure in going to work following their child's court appearance and bragging about it. They say how clever little Tommy was to have stolen so much money, videos or whatever. If the child's name appeared in the local press the parents would be even prouder. Therefore, it is important that nothing about such a court case is reported. The Bill makes it clear that reports of such cases in the press should not be allowed.
I was interested to hear my noble friend Lord Windlesham say that there were to be four youth offender panels in London. I had not appreciated that. Who will the members be? We have heard that they will comprise a social worker, a policeman and various others, but it is important that local people should know exactly who the members are because they will have great influence on the children who are sent before them. The panels are an excellent idea and have operated in Scotland for some time—not with universal success, but perhaps we shall be able to improve on the system.
The noble Lord, Lord Warner, spoke of reparation. I know that the victims of burglary or theft—you name it and I can tell you about it—cannot bear to see those who have committed the crime. The defendants dislike being forced to go to court and to say they are sorry—of course they are not and they pretend—so the requirement for that kind of reparation is wrong for children.
There is a great deal in the Bill that is right, but there is much unnecessary repetition. I suggest that there is a lack of sound common sense, which is all that we had to go by in my day. I wish the Bill well. When it is implemented it will, with luck—and luck will have to be on our side—be of great benefit to juveniles in this country. I hope that it will be successful.
§ 5.38 p.m.
§ Lord Mackenzie of Framwellgate
My Lords, first, I apologise for the quality of my delivery tonight. I have contracted a heavy cold—my father would have said that I probably drank from a damp glass last night! I congratulate the noble Earl, Lord Rosslyn. on his maiden speech. In my previous existence as president of the Police Superintendents' Association he was, and perhaps still is, one of my members. I congratulate him on an excellent contribution. I hope we hear from him again in the future.
I welcome the Second Reading of the Youth Justice and Criminal Evidence Bill. The Government White Paper, No More Excuses, was aptly named. For years we have been turning a blind eye to crimes committed by juveniles in our communities. Caution after caution has been given by the police and the word has got around that if you offend and are unlucky enough to be caught, nothing much will happen to you. That is the worst possible signal to send to youngsters who are, quite naturally, testing the boundaries of acceptable behaviour, as, indeed, we all did as youngsters. It is part of growing up.
The youth justice provisions of the Bill follow on from the ground prepared by the Crime and Disorder Act 1998, giving effect to further reforms of the youth court. The new sentence of referral to a youth offender panel is not a soft option and is preferable to the continuing cautioning regime, to which I referred earlier. Anything which makes young people take responsibility for their anti-social behaviour is to be welcomed.
Talking to ordinary people in communities, as I do regularly, one sees that their complaint is not concerned with violent bank robbery, rape or murder. It is more likely to be about the fear caused by gangs of youths blocking footpaths, vandalising property, swearing or generally causing a nuisance. Indeed, the cost to the community of juvenile crime was highlighted this week in the excellent report from NACRO, Wasted Lives, which tells us, for example, that each young offender, on average, has committed criminal activity costing in the region of £75,000. If there are 2,500 youngsters in custody that is something like £190 million. So there is a financial interest in stemming this problem.
In essence, we are talking about bringing discipline into what, quite often, is an undisciplined life. Under this Bill the youth offender panel will work with the offender, as I understand it, and establish a programme of behaviour for him or her to follow. We all work better with a plan, a sense of direction and, of course, pride in achieving goals. The principles governing restorative justice are extremely important because they involve goals: for example, restoration to the victim, reintegration into the law-abiding community and taking responsibility for the consequences of offending behaviour.
I remember the shock many years ago on joining the police of having to make bed packs in the dormitory, drilling on the parade square, attending mock incidents, taking command and being required to give evidence 1275 about such incidents in the formality of the courtroom before people like the noble and learned Lord, Lord Bingham of Cornhill.
I am sure that those of your Lordships who were in the services will share with me the sense of team spirit, camaraderie, pride and a sense of family that were felt. It is precisely the sense of family and in many cases the fact of family that is missing from many young offenders' lives. It is hoped that the new sentence of referral to a youth justice panel will assist in bringing about self-discipline, so desperately needed by those who stray into criminality.
In my previous life, I continually drew attention to the fact that we do not treat witnesses in courts properly. I am on record as using the analogy of a football match. We can send off a jury member or two, replace counsel or even the judge, but without the witness the game has to be abandoned. That is why it is so important that the judicial system treats witnesses fairly and values them. Many police forces—I think all police forces—have elaborate witness protection schemes in serious cases, which are costly but essential in order to see that justice is done. Justice is just as important in less serious cases. We all know the difficulties encountered by witnesses who are youngsters and those suffering from mental and physical disorders.
I have talked of the special stress of victims who have to confront their assailants in the courtroom, particularly in sexual-attack cases. If a person falls into a particular category, it is right that that is a matter for the court to decide. The special measures in the Bill will help the determination of the truth, which surely is essential to justice.
Finally, I want to comment briefly on the special plight of victims in sexual cases. As I said in the debate on the gracious Speech, the police have improved immeasurably the way in which they deal with alleged victims of sexual attack. I said then, and I say again, that I wish the same could be said of the courts and the lawyers. That is why I welcome the provision in the Bill placing limits on the circumstances in which information on the previous sexual behaviour of alleged victims can be asked for or presented to the court.
A woman is entitled to the protection of the court. Her previous lifestyle or activities not connected to the alleged offence should not make her less capable of being raped or assaulted. In my judgment, that will enhance the provision of justice.
Similarly, rare though such cases may be, surely it is right that the Bill now prevents the accused from cross-examining personally the alleged victim in certain types of cases, particularly those of a sexual nature. We have heard cases of such cross-examination being used further to humiliate and distress alleged victims, who have already been through the harrowing ordeal of the attack itself and relaying the facts to the authorities. I believe that most like-minded people will see that as a sensible move to protect the vulnerable.
The noble and learned Lord, Lord Bingham, said that judges now have a direction and would protect victims in future. That may well be, but it is Parliament's duty, 1276 where it sees lapses by the judiciary, to put matters right. That was certainly the basis of the Crime (Sentences) Act 1997. I see nothing wrong with Parliament occasionally doing the job that the judges in those cases perhaps should have done. Protection of witnesses is simply too important to be left to chance. Without witnesses, justice cannot be done. I welcome the provisions in the Bill.
§ 5.47 p.m.
§ Lord Ackner
My Lords, I put down my name to speak in this debate for two short and simple reasons: first, to demonstrate that I can make a short speech and, secondly, to take pleasure in agreeing with my noble and learned friend the Lord Chief Justice, having strongly disagreed with him last night—although I was in good company, as his judges in the High Court and the Court of Appeal also disagreed with him—and I had the support of the former Lord Chief Justice, the noble and learned Lord, Lord Lane.
Turning to the merits of the provisions, I shall deal with the two points raised by my noble and learned friend. The first is the prohibition on cross-examination by a defendant in person. Rape is a terrible crime. It is a difficult crime to prosecute because two features are sometimes forgotten. The definition requires the prosecution to prove that the defendant has had unlawful sexual intercourse with a woman who, at the time of the intercourse, does not consent and at the time he knows that she does not consent to intercourse or is reckless as to whether she consents to it. That introduces a subjective test as to what was in the mind of the alleged assailant.
The majority of rape cases are known as "date rapes"—that is, allegations which concern a defendant who has been on intimate terms with the complainant. It may be that they were husband and wife, boyfriend or whatever the situation was. It is oath for oath. Special rules have been provided for rape cases. First, anonymity is given to the complainant: it is not given to the defendant. Secondly, there are restrictions on questions that go purely to credibility which do not exist as regards other offences. Thirdly, the obligation to give a warning where there is no corroboration has gone. I am anxious that, by implication, we do not reverse the onus of proof.
There has been constant reference to victims of rape. That presupposes that the complainant is right and that the defendant is guilty. That is a danger which inevitably can arise because of the high acquittal rate which occurs with these offences. One overlooks that the onus of proof is very heavy. The jury has to ask itself, having merely heard in most cases oath against oath, "Has the prosecution satisfied me so that I am sure that the offence has been committed?". I have no doubt that the jury is worried by the very substantial period of imprisonment which will be imposed if it convicts. Therefore, I suggest that this prohibition is undesirable.
I suggest that it is an absurdity to say to a man who has lived with a woman for several years and who is faced with an allegation which he considers to be bogus and has been made up out of spite or whatever it may 1277 be, "You may not ask any questions of your wife or girlfriend". It is an absurdity and a denial of an elementary principle of justice. If the defendant shows that he is going to cause difficulties to the way in which the prosecution is conducted by his attitude to cross-examination, that can be dealt with quite conveniently in the absence of the jury by the judge discovering what exactly are the issues to which the cross-examination is directed and then warning the accused that he must be confined to those issues and that if he does not do so, he will be deprived of the right to cross-examine. But as long as he can cross-examine properly, there is no reason why he should be restricted. In the majority of those very few cases where the defendant is in person that occurs. As my noble and learned friend the Lord Chief Justice pointed out, there have been only two cases which have given rise to this publicity.
I pass to the second category of protection which is to be provided and that is an embargo on the extent to which the court in its discretion may allow cross-examination as to the attitude to sexual relations shown in the past by the complainant. I believe that your Lordships will accept that one of the most experienced practitioners in this field is the noble Baroness, Lady Mallalieu. In the debate on 22nd June 1998, when we were considering the Home Office report, she said,If cross-examination by a barrister is insulting, bullying, aggressive or too long, judges can and in my experience certainly do intervene to stop it. Contrary to what has been said, in the 28 years or so that I have been in criminal practice, it has not been my experience that unnecessary or irrelevant cross-examination about previous sexual history is allowed. Indeed, judges today take the greatest care to ensure that the reasons, the nature and the extent of the cross-examination are explained before they will allow any questions of that nature to be asked. I question therefore the need for change in that respect. It is necessary in each case for the specific facts which led to the request for those questions to be asked to be explored by the court".—[Official Report, 22/6/98; col. 102.]I invite your Lordships to an observation made in the same debate (at col. 103) by the noble Lord, Lord Thomas of Gresford. He said:When there is political pressure to restrict the independence and the discretion of the trial judge, there lies danger".I end with one final reference. I go back to the suggestion that a person be prohibited from cross-examination. I received briefing material for the debate to which I have drawn attention from Women Against Rape. It is headed:Re: question from Lady Byford to be debated in the Lords on 22 June proposing to remove the right of defendants accused of rape from cross-examining the witness".The opening sentence is:We strongly oppose this proposal, which was also put forward in the recent Home Office report on vulnerable and intimidated witnesses … This change is not in victims' interests, nor what most victims have demanded".It continues:Removing the right of men accused of rape to defend themselves would not change the way victims of rape are treated in court by barristers, who are routinely allowed to ask irrelevant questions about victims' medical and sexual history … The problem is not who asks the questions but which questions they are allowed to ask".1278 The final sentence is this:The experiences, needs and demands of rape survivors rather than the agenda of opportunistic and populist politicians and the media must frame the public debate and changes in the law".
§ 5.59 p.m.
§ The Earl of Mar and Kellie
My Lords, after the scrutiny of the Crime and Disorder Act in the last Session, it is good to be debating this Bill which puts flesh on the bones of what was approved at that time. My interest in the Bill lies in Part I and Schedule 1 and, indeed, in Chapter IV of Part II—or, to be more obvious, the youth offender panel system and the restriction on reporting, which also extends to Scotland.
I was anxious last Session to ensure that useful portions of the Scottish children's panel system were incorporated into the proposed youth justice system. I suspect that, on occasion, I sought to substitute the whole of Part III of the Social Work (Scotland) Act 1968 into the Bill. My excuse for such over-enthusiasm is that I was a social work student in 1968 and that this legislation accompanied me down the slipway into my professional life.
I also acknowledge that the children's panels deal with children in need of compulsory measures of care for reasons other than offending. It is fair to say that that is a far wider remit than the youth offender panels will have. Therefore, I am looking at this Bill with great interest as its provisions are clearly much needed in England and Wales. I am now content with the idea that systems for dealing with youth offending within the United Kingdom can be different—it is part of being a developing, diverse and fair union-state—so long as the systems are effective. This effectiveness has to work both for the young person as well as for the victim, those affected and the health of the community of which the young person is supposed to be part.
I like the emphasis placed on referral orders being imposed on the first occasion that the young person comes before any court. In far too many cases the tendency to be reluctant to put a young person into the court system has led to them being let off too often. That sends an unhelpful message to the young person and may, in reality, be the umpteenth time that he or she has got away with it. So a referral order as part of the first appearance is positive. But I am concerned that the referral order should not be recorded as a conviction. However, I would allow the conviction to be recorded subsequently if there were further offences after the referral order has been completed. It is reasonable to allow some protection to youthful reputation if the effort is made to remedy the situation, and it is also reasonable that that should be forfeited in the event of persistence with offending behaviour.
The time it takes to get a case into court will continue to be critical. There is nothing like a rapid appearance in court to bring home the direct consequences of offending behaviour. At present this is only achieved for those appearing from custody. Here the children's panel wins hands down. A children's hearing can be convened in less than 24 hours. I recall that the Crime and Disorder Act proposes a fast track for young people but 1279 the insistence on due process, with its preparation time for the prosecution and the defence, builds in unhelpful delay. I see that delay as a deliberate inefficiency.
I acknowledge that a children's hearing can be delayed by the refusal of the child and parents to accept the grounds of referral, but that delay occurs only if the parents take up that option. Most parents accept the grounds of referral and the hearing proceeds to deal with the child's future straight away.
So a referral order has been made and the young offender is referred to the local youth offending team. That professional body will appoint one of its members to be the young person's contact. That adult will also be a member of the youth offender panel for the young person in question and will be accompanied on the panel by two lay members. The professional member will also be the supervising officer and will keep the case records for the whole of the referral order. That is surprisingly different from Scotland's system. The number of people proposed to be involved is substantially reduced and may be constitutionally at fault.
At a children's hearing the child and parents sit round the usually oval table with the three members of the children's panel, accompanied by the reporter to the children's panel and the social worker. It is the position of this latter person—the professional worker—which concerns me. At any meeting of a youth offender panel the professional worker will be reporting to the panel and then making decisions as a panel member about the offender. That is a confusion of the roles: an expert witness will be on the bench. That will be perceived as a structural weakness.
At the conclusion of the first meeting of the youth offender panel, the panel should have reached the point where it has drawn up a contract, which the young person must agree to and sign. I approve of this approach; it guarantees that the young person and his parents will be aware of what is expected of them. I believe to be correct the provision which allows the youth offender panel to be adjourned for a day or so if there is some initial reluctance to agree. This will be an opportunity for informal reasoning with the family and the young person. I just wish that the professional worker who will do that reasoning was not also going to be a member of the youth offender panel.
The opportunity to vary the terms of a youth offender contract is sensible. Variation allows the contract to be kept in focus and up to date, and to be adapted to the needs of the young person as the panel gets to know him or her and as his or her behaviour patterns develop—which they certainly will during one of the longer orders.
There will inevitably be failures and some further offences; the decision-making allowed to the panel, and the courts, seems to be sufficiently flexible to cope with a continuation of the order, or breach proceedings.
When time is up, or, as the Bill says,the compliance period is due to expire",I am pleased to see that there will be a statutory final meeting to wind up the young person's involvement with the youth offender panel. That process is decidedly 1280 missing from too many community sentences generally. There is a new approach to that conclusive meeting—and one which will be quite mind-focusing for the offender. The youth offender panel must decide either that the young person has completed the contract satisfactorily, in which case a letter will be issued to the young person and the order will be discharged, or the panel will decide that the contract has failed and that offending behaviour has not been terminally abandoned, in which case the young person will be referred back to the court for punishment.
As I conclude my remarks, perhaps I may make one criticism of one feature of the Scottish children's panel system, although this probably constitutes treason for someone of my disposition. Much as I approve of the welfare approach to offending by children and young persons, I do not think that victims, and other persons affected, are well served by the informal approach taken at a children's hearing towards establishing guilt. The saving grace of the youth justice system in this respect is the initial court appearance and establishment of guilt, despite my more substantial fears about delay in dealing with offending behaviour. Having said that, I look forward to playing a committed part in the subsequent stages of the Bill.
§ 6.8 p.m.
§ Lord Northbourne
My Lords, I congratulate the noble Earl on his speech and thank him for making many points with which I very much agree. I welcome the Bill and wish to refer to Part I, which is the section which interests me. However, the success of Part I will depend entirely on the implementation of the proposals by the youth offending teams and the youth offender panels.
My comments today are probably not relevant to what is on the face of the Bill, but are perhaps relevant to what will ultimately be in the regulations or guidelines. My experience arises from my chairmanship of the children's department of Toynbee Hall and the Stepney Children's Fund, and as a trustee of the Caldecott Foundation, which deals with very difficult and damaged children.
I should like to describe to your Lordships the defendant befriending scheme which we have at Toynbee Hall. It is different from, but extremely relevant to, the proposals before us today. The offenders who come to our befriending scheme are referred by a multi-agency panel, which is made up of professionals in Tower Hamlets who deal with children, whose job it is to decide whether the child should go to court or be given the opportunity to take part in the befriending scheme. The young person decides whether he or she wants to take part in the befriending scheme. If they do so, they will have no criminal record. They must plead guilty to the offence, but they will not have a criminal record.
The process of befriending is a one-to-one relationship. We have a team of 20 or so trained volunteers who undertake to give the young person a minimum of six hours' attention a week for six months, and there is on-going follow-up support if they need it. 1281 The object is to build-up trust between the befriender and the young person, so that the befriender is in a position to help the young person to build up a new image of himself and, having done so, to build up a new plan for his life.
Under the Home Office criteria of not reoffending within one year, we have had a better than 70 per cent. success rate. The cost, including the costs of the activities, training the volunteers and the part-time volunteer supervisor, works out at approximately £750 per young person supported.
There are two features of our scheme which I am not sure will appear in the Government's proposals. Perhaps the Minister can clarify the situation for me. First, the young person has a choice; they make a positive commitment to join the scheme. This gives them, in a sense, a certain ownership of their own future. That is very important. Will the new scheme give the young person the opportunity to make a choice? The answer will probably be "Yes. By signing the contract, the young person will make a choice." But if they simply feel that they are doing what they are being forced to do, that they have no alternative, they will participate with much less enthusiasm, and that will make it more difficult for the scheme to have the desired therapeutic effect.
Secondly—this is perhaps an even more important issue—in our scheme the young person has the opportunity to make a strong, personal link over time with a responsible older person, who becomes a friend and a mentor. The older person's objective is to persuade the young person to change his or her attitude, both to the community and to themselves, and to provide guidance on the kind of life that they should lead in the future.
Many young offenders who appear in court for the first time have been offending for quite a long time before they become known to the police. They are not necessarily just nice guys, "testing the boundaries". Too many of them, unfortunately, belong to a culture which exists in part of our society today. They believe that there is no future for them in school or employment, and so they might just as well go into a way of life which involves living on benefits, supplementing and spicing them up with illegal activities.
We are not talking merely about punishing an offender, but about changing attitudes, changing the attitudinal landscape of some young people. That is particularly hard when the family might be heavily involved in burglary and shoplifting—or whatever—and when the street culture is pulling them in the opposite direction. I do not think that reparation or punishment will be enough. Will the youth offender panel have the power and the resources to ensure that, where necessary and appropriate, a young person will have a befriender or a mentor? Will he have such a person for a sufficient length of time to enable them to develop an appropriate relationship, which will enable that befriender or mentor to influence that young person for good, to build him up and to encourage him?
If the answer is "yes", there will be a need for a lot of dedicated people who are prepared to give of their time, and a need for enough money to support them in 1282 doing their job properly. Who is going to do it? Someone will have to walk up the path with the young offender when he goes to wallpaper the house of his victim. I do not think that many victims will want to have offenders doing that, but that is another matter. Who will supervise them? Who will befriend them and act as a role model? That will probably be two different people, the person who is imposing the punishment on the one hand and the person who is becoming a friend and mentor on the other.
Youth services in most local authorities have been cut to the bone. The voluntary organisations are extremely stuck for funds—grants have been cut back drastically over the past years—and the social services are practically completely occupied now in dealing with crises. Who will actually do the job? If we want to avoid wasted lives, as a society we must invest in making this youth offender panel system work. We must invest in prevention.
I spoke, argued and fought with the previous government, but I could not budge them the slightest degree on the issue of investing in prevention. If this Government are prepared to put money into prevention, I ask noble Lords to support them.
§ 6.16 p.m.
§ Baroness Anelay of St. Johns
My Lords, I would like to speak to Chapter II of Part II of the Bill which tackles the issue of the cross-examination of witnesses in cases of sexual offences.
I tabled amendments on this issue during the course of the Crime and Disorder Bill and I took part in the debate on the working party report on 22nd June. I am grateful to my noble friend Lady Byford for raising that debate as an Unstarred Question. I also thank her for her extensive work on the subject.
I have been in contact with many outside organisations on this matter. Some felt that I had gone much too far and others, such as Women Against Rape, that I had not been radical enough. I am grateful to Women Against Rape for its briefing on Clause 40 matters, to which I will not refer today but I have no doubt it will raise much debate at Committee stage. Today I will confine my remarks to Clauses 33 to 39.
I give a cautious welcome to the fact that the Government are attempting to tackle such a sensitive issue—cautious only in that I am always cautious by nature anyway. Any reservations I may express tonight, or questions which I may pose, are not intended to be hostile but merely to ensure that any changes wrought by this Bill meet the requirements that they are both effective and fair.
The Bill covers some radical new ground in breaching the long-established right of individuals to put questions in person to their alleged victim. It comes at a time when the noble and learned Lord the Lord Chief Justice has made strenuous efforts to make changes by practice direction. It is important to recognise the positive steps already taken by the judiciary to address the difficulties raised by cross-examination in cases of sexual offences. I have listened with great care to the arguments put 1283 forward tonight by the noble and learned Lord, Lord Bingham of Cornhill, and the noble and learned Lord, Lord Ackner.
In the debate on the gracious Speech, the noble Lord, Lord Mackenzie of Framwellgate, referred to this issue, as he has reminded the House tonight. He said:I only wish courts and advocates dealt with victims as sensitively as the police".—[Official Report, 2/12/98; col. 530.]On that occasion the noble Lord, Lord Thomas of Gresford, pointed out that it was not quite the case that the police are all good and lawyers are all bad. Surely that is the nub of the matter. It is too simplistic perhaps to think in terms of lawyers being insensitive in cross-examination. Not all advocates are monsters—and, as ever, I declare an interest in that I am married to one. All lawyers, at whatever stage of a case, must test evidence rigorously. That is their job. Constraints upon the rights of the accused must therefore be considered in the light of the fact that not all of them are guilty.
It is also important to recognise that the treatment of witnesses has a proven direct impact upon both the level of reported crime and, subsequently, the victim's willingness to give evidence, and to continue to give evidence, throughout what can be a very traumatic trial. The cross-examination of the alleged victim therefore has to be rigorous but fair. The overall question that we will need to consider in Committee is whether the Bill provides a fair balance in the way it approaches all these matters.
I shall leave detailed consideration of the proposals to the Committee stage, but I should like to flag up two of the issues which we may need to address as a result of the mandatory prohibition in Clause 33 upon personal cross-examination of the alleged victim by the defendant. Clause 33 provides that defendants charged with rape or other sexual offences who choose to conduct their own defence may not themselves cross-examine the alleged victim of the offence. It also extends that prohibition to any other offence with which the defendant is charged in the proceedings.
The report Speaking up for Justice recommended that there should be a mandatory prohibition on unrepresented defendants personally cross-examining the complainant in cases of rape and serious sexual assault—Recommendation 58. However, it appears to me that the Bill has significantly widened the net beyond serious sexual offences to encompass "sexual offences" as defined in Clause 57—not only rape or burglary with intent to rape but also indecent assault. Presumably that means any indecent assault of whatever level of seriousness. I ask the Minister for guidance on this point. Would it mean that the prohibition on personal cross-examination would cover cases in the magistrates' court?
Clause 33(b) also puts a mandatory prohibition on cross-examination with regard to any other offence, of whatever nature, with which the defendant is charged. It will be interesting to learn the Government's thinking behind the extension of the mandatory prohibition 1284 beyond the recommendations in the working party's report. I hope that we shall have the opportunity to examine that point in Committee.
The second issue concerns the work of the lawyer who will be appointed to carry out the cross-examination when the defendant has been barred from doing this personally. Basically, how will the lawyer do the work effectively and meet the high professional standards? Clause 37 makes provision for representatives to be appointed to conduct cross-examination on behalf of, or in the interests of, unrepresented defendants. If a defendant is banned from cross-examination in person, the court will ask him or her to select a legal representative to carry out the cross-examination. If the defendant does not agree to select a legal representative, the court will have to consider whether it is necessary, in the interests of justice, for the witness's evidence to be tested. If it decides that it is, it will appoint a legal representative with rights of audience in the court to cross-examine in the interests of the defendant.
That clause follows very closely Recommendation 62 in the working party's report. However, when one reads the main body of the report, important issues are raised about how effective the role of the legal representative can be. I believe it would be helpful to the House to discuss those issues at the Committee stage. I believe that there are some circumstances in which the role of that lawyer may be so closely circumscribed that he may not be able to fulfil what would normally be considered his professional responsibilities.
All of us throughout the country have a role to play in ensuring that the criminal justice system works as fairly and effectively as possible to protect all the individuals concerned—victim or innocent defendant. I have listened with interest to those in the House who are experts in this field, from my noble friend Lord Windlesham, who has so carefully represented, inside and outside the House, the interests of victims, to those who have played a part in the judicial system. When we come to the Committee stage I look forward to playing my small part in assisting the House in further discussion of the Bill.
§ 6.24 p.m.
Viscount Colville of Culross
My Lords, I am very happy to endorse the many speakers who have encouraged the introduction of Part I of the Bill and have made constructive suggestions about it. I want to concentrate on an area that has not so far been discussed. I refer to the special measures directions to be found in Clauses 19 to 32 and rules to be made under Clause 60. Some procedures there are already familiar. We already use screens on suitable occasions in the Crown Court, we already use the television link and there are many cases where the video recording of the evidence-in-chief of a child is played in court to the jury in the course of the trial. I am not absolutely certain why it is necessary to put these procedures on a statutory basis. If the noble Lord, Lord Warner, is right in quoting a source that says there is judicial opposition to the use of television links, it is certainly not my experience that that is the case. Perhaps the noble Lord, Lord Williams, 1285 will explain why we need these familiar techniques put into statutory form. But I in no way oppose the proposition in the Bill.
What I wish to refer to is the provision in Clause 27 about the cross-examination and re-examination of witnesses—they will normally be child witnesses—on a video recording. I wondered whether it would be possible to deal with this at the Committee stage, but I think it is so complicated that it deserves a short Second Reading speech. I see that in one line the Law Society opposes Clause 27, but I recall that the provisions in it were recommended by the Pigot Committee and that they have been widely discussed in Parliament since but have never previously been adopted. Therefore, this is an admirable occasion on which to consider the realities of the situation in 1998.
I welcome the provision, subject to what I am about to say, because if a case of abuse of a child is to be tried and the child's evidence-in-chief is given by means of a video recording, there is inevitably a delay. The delay is sometimes far too long. But whatever the delay may be, the child, having immediately after the prosecution has been decided upon given the statement which is recorded on video, sees it for the first time when it is played to the jury at the trial. Counsel and judge will have seen it before but the jury and the child witness see it at that stage.
I have had to deal with a number of these cases. It is not surprising that a good many of the children, when asked questions, say, "It is a very long time ago. I cannot remember", or, alternatively, "Can I possibly see the video again?". And, of course, they cannot. If the Minister would be so kind and has time, I should like him to explain in outline how the provisions in Clause 27 will work and to tell us about some of the contents of the proposed rules. I see and applaud the idea that there should be piloting of this provision and that it should be phased in.
If there is any method of avoiding bringing a child to court, particularly some time after the whole thing happened, that is something I wholly favour. Such visits are not only traumatic for the child, who has had to be taken to the court on a previous occasion to familiarise himself or herself with the procedures and geography of the court, but they are time-consuming for the people to whom the noble Lord, Lord Windlesham, referred from Victim Support who have to make all the arrangements. They do that very well, but it is extremely time-consuming and it would be wholly desirable for everybody if it could be avoided—particularly for child witnesses.
I am glad that under Clause 27(6) there will have to be special reasons for a further cross-examination, after that done on video, to be allowed by a judge. The real intervention that has occurred since the Pigot Report is mentioned in Speaking Up for Justice and is crystallised in the provisions of the Criminal Procedure and Investigations Act 1996 and the rules in the code of practice made under it. That has formalised the preparation of a case. There is a timetable, which is meant to be rapid, after a committal by magistrates to 1286 the Crown Court. There is primary disclosure, a defence statement, then secondary disclosure. Only after all that is it possible for the defence to cross-examine.
Your Lordships will be amazed to know how many times primary disclosure does not appear fully to have been carried out or, if it was, the defence seems to have lost the documents or never received them. It is amazing how long it takes to get a defence statement for various reasons, and equally amazing is how long it takes to get secondary disclosure. In a case involving a child, time goes by, months pass and the defence case becomes stale—and a child's memory is very short.
I put before the Minister a shopping list. It is not one that he will take down the high street for Christmas. But as he kindly promised to talk to us all in the new year, perhaps we may discuss the list later. Cases where a video link should be used ought to be identified by the Crown Prosecution Service at the earliest possible stage and marked in some way on the file for priority treatment. After that, the CPS case officer must ensure that the police produce and the defence receive all the documents required under primary disclosure. I have heard it said so often, "The tapes have not arrived". There is no explanation, but a check has not been made by the CPS. That cannot be allowed to occur in such cases.
Then there is the defence case. Yesterday, there was an important Bill about those who are to conduct criminal case defences. Whether they be banisters or solicitors, selected or not, there should be a duty upon the advocate who is to act at the trial immediately to grasp the case given to him or her. Admirable guidance was given by the Bar Council on 24th September 1997 about preparing defence statements. I hope that guidance will be enforced and that similar rules will apply to solicitors, who have audits. There must be a conference with the client and other things as well.
If the defendant will not co-operate, the defence must waste no time in coming to the court and seeking a bench warrant to require their client to attend and confer with his or her legal advisers. That is often left far too late. There is a great reluctance by some defendants to come in. If the defendant is in prison, the Minister would greatly assist the process if he could persuade the Prison Service to give priority to appointments with legal advisers to see such defendants to prepare their defences. I do not know whether the noble Lord is aware how extraordinarily difficult it is at Wormwood Scrubs, for example, for legal advisers to get an appointment to see their clients in custody pending trial, which greatly delays matters. The duty of the defence must also be to get statements from the proposed defence witnesses.
As to secondary disclosure, particularly where children are involved, one tends to get into the realm of social services or school reports. Are there to be rules about that? Paragraph 92 of the Explanatory Notes refer to such matters, which I welcome, but I suggest to the Minister that the prosecution should not wait until the defence statement to find out whether social services or educational records exist in relation to a particular child. They should acquaint themselves with those records, so that if and when there is a requirement to put them 1287 before the court and a necessity to decide whether public interest immunity is involved, they will be ready. So should local authority organisations, which sometimes are not that willing to produce documents. They have to be persuaded by one means or another. Sometimes, the defence goes fishing in those waters and, again, that wastes time—which could be avoided if the CPS were ready.
Only after all that will it be possible for the cross-examination by the defence, properly instructed and properly informed, to take place. If that is to occur on video, it must be done, if it is to be done at all, as quickly as possible. The scheme is ambitious, and I would welcome any further elucidation that the Minister can give. There may have to be more than one plea and directions hearings, and there is no difficulty about that.
As to paragraph 111 of the Explanatory Notes, I am extremely concerned that the Government envisage that either the trial judge or magistrates should not necessarily be present at the video cross-examination. It is extremely important that the defence counsel should be under the control of experienced magistrates or a judge who has a suitable ticket, because there is a tendency to dwell on a point far too long. There is also the absolute necessity, when dealing with video material, to make sure that a child who becomes tired is allowed to rest. That can only be done if the judge is in control of the cross-examination. When the Minister reflects, I do not believe that he will find it at all desirable that the court should not be in control of cross-examination.
Another point that concerns me is technical. It does not relate to cross-examination so much as the evidence-in-chief. Clause 26(3) introduces a new formula for the court to exclude evidence as being prejudicial. I had occasion in a case involving evidence-in-chief recorded on video to have a challenge about editing of the evidence, with the suggestion that some of it should be removed. At that time, the only guidance was Section 78 of the Police and Criminal Evidence Act 1984, which is a familiar scene for most people who administer justice. It is accompanied by an enormous amount of advice from the Court of Appeal. That has always been used. Why is the completely new formula introduced in Clause 26(3)? The only possible conclusion is that Parliament must have meant it to be a different test from that with which everyone is familiar under Section 78 of the 1984 Act. Different rules would have to be evolved and I do not believe that that would lead to the smooth administration of justice. I ask the Minister to look again at that point.
The Minister will now understand why I could not say all that in a clause stand part debate. If he can give me any help with those matters, I shall be much obliged.
§ 6.39 p.m.
§ Viscount Brentford
My Lords, like other noble Lords, I warmly welcome the main thrust of the Bill. I was impressed with the Explanatory Notes which set out the three principles of restorative justice. I wonder whether there is scope for having a clause at the start of 1288 Part I to set out the principles or objectives of this part. We move fast straight into referral orders. Has the noble Lord considered whether some kind of introductory clause setting out these principles would be helpful in the implementation of the Act at a later date? Your Lordships' House has on occasion done that before now—against the wishes, I believe, of the former government. It may be valuable sometimes to have such an introduction to set out what that part of the Bill aims to achieve.
The Bill moves straight into referral orders in Clause 1. I seem to remember hearing my noble and learned friend Lord Mackay of Clashfern musing yesterday on the difference between a committee and a panel. I am glad that we have the active and vibrant words of "team" and "panel" in Clause 10. I believe that that is valuable. Perhaps because of all the committees on which I have served over the years which seemed to lead to a dead end, I am not keen on the word "committee". I am glad that the Government have chosen the words I have mentioned in connection with this youth offender work.
I was also glad to hear from the noble Earl, Lord Rosslyn, in his admirable maiden speech more about the Thames Valley Aylesbury Project. I referred to this a year ago when I said in a debate on 27th October, quoting The Times,After an 18-month trial, Thames Valley Police said that only 12 petty criminals had committed new crimes out of 350 who took part. Normally about 100 are likely to reoffend".—[Official Report, 27/10/97; col. 952.]I felt that that was satisfactory. The document No More Excuses refers at page 17 to the Thames Valley scheme. It states that,more detailed research will be conducted".Can the noble Lord, Lord Williams, say anything further about more detailed research during the past year other than what the noble Earl has already told us? I am greatly in favour of such research for a number of reasons. All that has been included in this Bill on that point is obviously welcome to me.
There has been a certain amount of discussion on regulations and guidance. I noticed that my noble friend Lord Windlesham said that he thought that there was a good deal of detail in this part of the Bill. The same thought occurred to me when I studied the Bill. I heaved a sigh of relief that all this was in the Bill and not in regulations. I then started to count how many references there were to "separate guidance" and "regulations". After counting three or four, I decided that I would not complete the task. There is a great deal of work to be done on this. When will the regulations be produced? I suspect that the noble Lord, Lord Williams, will tell us that they will not be available for our discussions on this Bill. However, I should be glad to know whether any of them will be made available at a later stage.
As regards Clause 3, I am glad to see a reference to the home location of an offender. It is important that a court should take that into account. An offence may not be committed in the area where the offender resides. The offender may live 100 or 200 miles away. I am glad 1289 that in setting up the panel the court must take into account where the offender resides. I was pleased to see that provision.
As regards Clause 5, I was glad to see that "the appropriate person" is defined, where relevant, as either,a parent or guardian of the offender".or the local authority. Can the noble Lord give us any idea of the proportion of cases in which the local authority will be considered the appropriate person and the proportion in which that will be considered to be the parent or guardian? What is the balance as between those categories? We have often talked in your Lordships' House about local authorities having problems as regards young people in their care.
When the noble Lord replies to the debate, will he be able to give us any information as regards Clause 6(4) and the qualifications or criteria that the Government seek for members of the youth offender panel? As subsection (4) states, I am sure that that will be specified in the regulations. However, can the noble Lord tell us anything further today about what he is looking for in that regard?
I appreciate the flexibility in Clause 7(4) as regards the reference to,someone capable of having a good influence on the offender".I am sure that in most circumstances parents are the people who ought to have a good influence on the offender. However, we all know very well that that is not always the case. I congratulate the Government on referring to someone else who could be the good influence. It is good that parents are to be made responsible for their offspring. After all, parents have brought their offspring into this world and they cannot deny that responsibility, although many, sadly—usually the fathers—often attempt to do so. The more they can be made responsible for their offspring, the better. I appreciate the flexibility that has been shown in this regard.
Clause 8 is a good provision. I tried to incorporate the three principles I have already mentioned and references to similar matters in the document No More Excuses into my consideration of this clause. As regards the references to reparation and reintegration into the community, perhaps there is scope here for greater emphasis on a sense of personal responsibility. I believe that one can thus help a young offender to mature. Clause 8(2)(f) comes closest to a reference to a sense of personal responsibility when it states that the offender must "address offending behaviour". However, I believe there is scope for making a young offender adopt greater personal responsibility for what he has done. Here, again, I believe the Thames Valley practice is helpful. For an offender to face his victim, as is provided for in Clause 8(2), is of great help in conferring on him a sense of personal responsibility for what he has done. Perhaps there is scope for more of that to be written into Clause 8.
Finally, I wish to comment on two clauses in Part II. Like the noble Viscount, Lord Colville, I refer to Clause 27 which deals with cross-examination by video recording. Perhaps there is scope for the possibility of a live link, as in Clause 26(9). I went round in circles on 1290 it and I may have got it wrong, but it seems to me that cross-examination may arise from video recording in court. Would it be helpful—obviously not in the case of small children but with other witnesses being cross-examined—for it to be done via a live link so that they do not face the accused? It could be done instantaneously before the court. Perhaps that would be cheaper than the court having to adjourn for a video link.
I also wish to mention Clause 33. Like the noble Lord, Lord Williams, I was pleased to see the prohibition on some of the dreadful distortions in the previous law, such as rapists putting their victims through the terrible trauma of several days' cross-examination. However welcome the clause, I have two questions. First, can the noble Lord, Lord Williams, confirm that it is not in breach of Article 6 of the European Convention on Human Rights? I hope that it is not. Secondly, should there be any flexibility for the court to permit any such limited cross-examination by the accused within limits set by the court as it considers appropriate? I notice that in Clause 35 there is discretion for the court the other way round—that is, for the court to make directions to prevent an accused from cross-examining a witness in person. I wonder whether there are any circumstances in which the court ought to have a discretion to permit the accused to conduct cross-examination under Clause 33.
By and large, this is an admirable Bill and I am glad to see both parts coming on to the statute book.
§ 6.52 p.m.
§ Lord Judd
My Lords, if the debate is remembered for anything, I believe it will be remembered for the exceptional maiden speech by the noble Earl, Lord Rosslyn. It is not often in our deliberations that we hear frontline experience of that kind being brought into our discussions. It is not always that one finds heavily taxed professionals able to reflect so deeply on the experience which they gain in their work and the implications for public policy. I believe that the House has every reason to be deeply grateful.
At the outset I must declare an interest, as I have done before. I am the honorary president of the YMCA in England, which works with some 70,000 young people in the course of a year. The YMCA broadly welcomes the Bill, particularly the youth offender panels, the contracts with offenders and the progress meetings. There is a general feeling among those most involved in the association that it is good to have clear procedures designed to operate with as little unnecessary delay as possible and to tailor the remedies to individual offenders. It enables them to develop a sense of identity as the basis for future responsibility.
I hope that local practitioners like those in the YMCA, with their invaluable frontline, realistic experience, can be involved in the implementation of all that. There will also be a great need for follow through after contracts are completed. What I think is often a sadness in the situation is the way that inadequate people are thrown back into society, with no real means for them to be helped to re-integrate and make a success of their lives.
1291 I hope I may be forgiven in this Second Reading debate for talking around the Bill as well as about it. The Bill comes in the context of the deep concern about dealing with the causes of crime as well as crime itself. Here I was impressed, not for the first time, by what the noble Lord, Lord Northbourne, said. It seems to me that, both in the cause of rehabilitation—which must be the highest priority of all in sound penal policy—and in the cause of good economic sense, prevention cannot be over-stressed as a priority. It is here that it is crucial for the Government to give priority, with the financial resources that can be generated, to supporting practical preventive work.
Let me give a few examples drawn from the experience of the YMCA. There is the work with the young homeless. It is a truly sobering thought to recognise that 42 per cent. of the young homeless with whom we deal in a pretty extensive programme have been in trouble with the police. Then there are the crime diversion programmes, like those in Lancaster and Woolwich, with their motor vehicle projects; or the programmes in places like Bootle, providing alternative education and training for young disaffected pupils excluded from school. There are the successful peer-led schemes dealing not least with solvent abuse. Those are the kinds of projects that need generous government support if we are serious about the causes of crime and prevention.
Then there is the vital pre- and post-release work with those in young offenders institutions. What are some of the practical manifestations of that? They are providing basic skills and vocational training; job search and employment awareness programmes; and, again, ongoing support and care after release, not least to help with training, employment and housing.
I have had the opportunity to refer to the experience I have been privileged to have in my relationship with the association in the past two-and-a-half years. I have had the opportunity on previous occasions, and I hope, therefore, I will be forgiven for re-emphasising something that has made a profound impression on me. It is the realisation that so many of those whom we categorise as young offenders are immensely lonely people, isolated and vulnerable, with none of the support mechanisms that all of us in this House take for granted in the course of our normal lives.
If I have learnt something from the years of working with the association which to me has become increasingly important, it is that if we are serious about rehabilitation and re-integration, we must walk with offenders through the process of rehabilitation. We must manifest practical solidarity with the young with whom we are dealing. Without such a positive approach, all the evidence indicates that prison becomes a damaging rather than a rehabilitating experience. Recent research published by NACRO and the Prince's Trust has underlined the point.
We are also concerned with the issue of parental responsibility. The words roll lightly off the tongue. But do we ask ourselves how adequate many parents in society are to carry out their parental responsibility. In 1292 the most deprived social areas of our country. are there opportunities to develop the talents and responsibilities of parenthood? Is there an underlying, genuine recognition that socio-economic factors do affect levels of parental support and supervision? It is absurd to pretend that there is no interrelationship between them.
If we are serious about prevention, we must give generous support for schemes which are designed to develop the skills of parenting among those who have least opportunity to develop them.
Schools have their part to play. There has been reference to that. I have immense admiration for the Minister. I have no doubt about the direction towards which he is working and the commitment with which he does so in order to tackle some of the issues I describe. I know that he will say that he becomes most frustrated about the number of youngsters in prison who cannot read or write and are not numerate. Therefore the work of the Department for Education and Employment is highly relevant to prevention. If young people do not have those skills, where is their chance to make a success of life? Therefore, the temptations to go off the straight and narrow increase.
However, I am sure that the Minister will agree with me that one of the difficulties in our education system at present is that, with all the curriculum pressures in recent years, there is not sufficient space for the character building, social policies, social training and social orientation programmes that should be taking place within schools. Perhaps I may be blunt about it. Many of us in this House look at education in terms of our experience. We take for granted the character building experiences that existed in our secondary education. But they do not exist now for many of the people who most need them. The space and resources are not available for teachers to develop those programmes. That factor has to be taken seriously as well.
In addressing the issues which the Bill is designed to tackle in the context of the administration of justice, the Government must continue to develop a social matrix, a policy in which a range of departments is brought together. If we simply rely upon the administration of justice, we shall get nowhere. The administration of justice underpins the necessary wider social policy.
In conclusion—I apologise because I have made this remark previously; and I hope that I shall be forgiven if I make it again in the future, as I am sure I shall—we cannot separate the issue of prevention from the prevailing mores of our society. If what is worshipped and applauded in our society is a kind of success related to greed, as distinct from public service, public responsibility, belonging and sharing, we can hardly complain if those living under immense pressures, with the greatest difficulties, go off the rails. Where is our authority to appeal to them? If we are serious about the issue, we have to redevelop a viable and convincing commitment to decency, integrity, commitment and solidarity in our society. On that basis—the young are often under incredible pressure—we shall have some credibility when talking about their responsibilities. But 1293 if we tell them what they should do when we appear to come from a world in which those principles do not operate, we have little credibility.
§ 7.5 p.m.
§ Lord Rix
My Lords, aspirations, words and actions do not always follow each other in quick succession. On this occasion, the aspirations have been around for a long time but I congratulate the Government on coming forward with legislation so promptly after the promises made in the gracious Speech. As chairman of MENCAP, I welcomed the words when I spoke in the debate on the Address. Some few days later, transmogrified into the president of MENCAP, I welcome the action on support for vulnerable and intimidated witnesses in the Bill, in particular those with a learning disability, a group already mentioned by the noble Lord, Lord Warner. Perhaps I may remind your Lordships that those form a constituency of approximately 1.2 million souls in the United Kingdom.
I am sure that fault may be found with parts of the Bill. In the interests of those who at present are denied justice because the criminal justice system presents them with barriers rather than help, I hope that we can give this measure a favourable wind on its journey to the statute book.
Having mentioned my particular concerns before, perhaps on this occasion I may summarise rather than elaborate them. Someone with a substantial learning disability, who has problems with communication, who is not streetwise and whose experiences have not given him a strong sense of his own worth is at particular risk of abuse, in particular abuse by those on whom he or she depends. The vulnerability which brings abuse also brings an enhanced risk of the abuse not being reported, not being detected, and, if reported, then frankly not being believed.
It is a basic test of a civilised society that people whose rights have been infringed should be able to secure justice through judicial process. That has not been happening. People with learning disabilities, who have suffered abuse, who have gone through agonies as a result and who when eventually they seem to see some light at the end of the tunnel, receive little sympathy and help because the criminal justice system has not been geared to meeting their needs, or even recognising those needs. No wonder they are often bewildered, hurt and—who can blame them?—angry too.
I should like to take this opportunity to pay tribute to those who have fought the good fight to secure better protection for vulnerable people and have helped us all to reach the point we are at today. One such person is the late Ann Craft of Nottingham University, who has had a great influence on both thinking and practice in this area. Her death in April last year was a great loss to the work in which she was involved and to her friends and colleagues. It is fitting that the Ann Craft Trust has now been set up to continue her work under her name.
Perhaps better known to your Lordships because of the regular meetings of its parliamentary group in this building is Voice under its chief officer, Christiana Horrocks. I have known Christiana over many years as 1294 a champion of the rights of people with learning disabilities in her professional Civil Service role. She is the continuing presence of commitment in the midst of all the regular changes of personnel which now appears to be the Civil Service norm and will certainly welcome the generous offer of a meeting with the department already given to us by the Minister.
In addition to its parliamentary role, Voice provides support and information to individual disabled people, their families and carers. Calls to the Voice telephone support line have doubled in the past two years. I suspect that that reflects both the increasing expectation that something should be done and the increasing frustration that justice continues to be denied.
The Youth Justice and Criminal Evidence Bill offers the possibility to process changes that will help a range of people who are disadvantaged by the way things are at present. I have no problem with this generic approach. It seems to me that, provided it delivers the required outcomes, generic legislation often has advantages, not least because it signs up more supporters to the cause of reforming criminal justice. To give evidence in court is an ordeal for many people who have suffered very personal distress, who find that the right words do not come very easily and are intimidated rather than supported by court routines, to the point of wondering whether they are the victims or are in the dock.
As to special measures for people with disabilities, I confess some discomfort about the wording that is adopted in Clause 16. In that provision reference is made to a witness who "suffers from mental disorder", "suffers from significant impairment of intelligence", suffers "from a physical disorder" but has only "a physical disability". I am at a loss to understand the distinction. I acknowledge the convention of drafting statutes in terms that are remote from everyday usage, and I respect the wisdom of parliamentary counsel in these matters. Nevertheless, I question whether we need "suffering from" which seems to imply both immediate pain and eventual cure. Neither fits the context.
I turn from terminology to procedural change. Like other noble Lords, I welcome in particular the possibility of video, live television links and screens being used for vulnerable adults as well as children. This can avoid the need for the person to appear in court and reduce the stress of exposure to the alleged abuser where a court appearance is inevitable. Video as well as a pre-visit would provide a means of preparing someone with a learning disability for a court appearance. I suppose that in the end virtual reality can become part of the process.
I assume that the court building is accessible as a necessary first step to introducing accessible court procedures. I am told that that is a rather rash assumption. I trust that the Home Office will issue guidance on how magistrates and Crown Courts can meet their Disability Discrimination Act responsibilities at the good practice level rather than just the bare essentials level. Technology and furnishings are not a substitute for personal support. That support is needed when someone is considering what help he may need in 1295 connection with a court case, just as it is needed immediately after the abuse, in the intervening period and after the case is over.
I acknowledge the long tradition of defending the interests of the accused by giving the victim as little support as possible until he or, more commonly, she appears in court, quite often to be mauled by defending counsel. I understand the rationale for that, but I do not believe that justice is either done or seen to be done by this approach. It amounts to making the vulnerable person a double victim: a victim of the abuse and then of the system. If "people" support is to be provided, the people who provide it need training. Training was a major theme of the recommendations in MENCAP's study Barriers to Justice which covered not only support staff but the police, the Crown Prosecution Service, lawyers, barristers, magistrates and judges. I ask the Minister what training is envisaged. Without training the Bill seems destined to be full of significant words but unlikely to have significant impact—strutting and fretting its hour upon the stage but then being heard no more.
I began by commenting on promptness on the part of the Government. I follow that up a little less charitably by inquiring about the timetable once the Bill has become law. When will the pilots begin? Assuming the pilots are successful, when is the full programme likely to be rolled out? Is there any risk that lack of resources may slow down implementation by impeding physical changes or acquisition of technology or training? We all know that justice delayed is justice denied.
I hope that I shall not be thought greedy if I raise one other point. When I spoke in the debate on the gracious Speech I drew attention to the marked discrepancy between the maximum two-year sentence that can be imposed when sexual abuse is tackled under the Mental Health Act as compared with the kind of sentence that may be imposed for the criminal offence of harming a vulnerable adult. Does the Minister agree that it is unacceptable to impose a lighter maximum sentence where the victim is a disabled person than where the victim is not disabled? Does the Minister propose to introduce measures to correct that quite unacceptable anomaly? I look forward to the Minister's response and to the rapid passage and implementation of a new piece of important legislation. It is undoubtedly overdue but nevertheless very welcome.
§ 7.15 p.m.
§ Lord Thomas of Gresford
My Lords, I add my warmest congratulations to the noble Earl, Lord Rosslyn, on his excellent maiden speech in which his practical experience was so much to the fore. I was astonished by the admission of the noble Baroness, Lady Anelay, that not all policemen were good and that not all lawyers were bad. It reminds me of Dylan Thomas's comment in "Under Milk Wood" that we are not wholly bad or good who live our lives out under Milk Wood. That can be said of both lawyers and police officers.
The noble Earl referred to the community conference and to its derivation which he thought was part of Maori custom. That form of dispute resolution has been 1296 adopted in New Zealand. I am reminded of a murder case in which I was involved in Oxford some years ago which involved discussion of the tribal customs of the Dinka in Sudan. They had a very similar way of resolving disputes and mediating by calling a village meeting in which the disputants were told how to behave themselves. Oxen were handed out in the proper proportions, and so on. The anthropologist from the University of Oxford who gave evidence said that the introduction of the noose and prison by the British under, I believe, General Kitchener, was regarded as truly barbaric by that tribe.
Today we are discussing youth offender panels which I believe to be very much a step forward in dealing with young people. I was party to the amendment moved by the noble Earl, Lord Mar and Kellie, when this House debated the Crime and Disorder Bill. As I said at the time, our current system of youth justice, with a youth court in which there is the traditional proof of guilt, the finding, the conviction and then the punishment, is not the best way to deal with young people. I was much impressed by the reference of the noble Lord, Lord Northbourne, to the use of youth offender panels involving the youth and the family so that the youth has a stake in his own future and his attitude will change accordingly.
The youth offender panels referred to in Part I of the Bill are limited in scope because they can apply only to first-time offenders, those who have no previous convictions and those who plead guilty. For example, if a person has appeared before the court on a previous occasion and has been convicted and given a conditional discharge, under these provisions it is not open to the court to make an order to refer him to a youth offender panel on a subsequent appearance before the court. I am glad to note that in subsections (3) and (4) of Clause 2 the Secretary of State is given power to extend the scope of youth offender panels as experience in operating those panels grows.
Therefore, I hope that the present proposals are something of a pilot scheme. They will deal only with a limited class of people because first-time offenders who plead guilty are a very small proportion of the number of people who appear in youth courts. I hope that that will gradually extend as people gain experience of that system.
I move now to Chapter I in Part II of the Bill. I welcome any provision which may be made to protect the interests of vulnerable and intimidated witnesses. It is a blot upon the history of the courts of our country that witnesses have been tethered up in some remote corner of the court without any regard to their convenience or their problems.
I had hoped that the Government might take this opportunity to review compensation for victims of crime because there has been no movement to reform the alteration to the criminal injuries compensation scheme which the previous government introduced so that awards of compensation were greatly reduced. But that is perhaps something for another day.
There must be a balance between the right to a fair trial and concern for the needs of witnesses. When one strikes that balance, one must have regard to the ordeal 1297 that the defendant is suffering in having criminal charges brought against him, to the difference a conviction of guilt may make to him and to his future, and to the ordeal of witnesses who, however vulnerable and intimidated they may be—and I have every regard for their problems—must undergo that very short-term experience. It is an ordeal for both.
There is nothing new in the special measures proposed in the Bill, as the noble Viscount, Lord Colville of Culross, pointed out in his speech. I have personal experience of screens being erected in court. Indeed, it is now so commonplace in the Old Bailey that in some courts, there are permanent frameworks in place so that screens can readily be put up. Similarly, I have personal experience of video links, of private hearings, of video questioning, even of removing my wig and gown in an appropriate case.
But what is new is Clause 27 which refers to the cross-examination and re-examination of witnesses on video. That is new. I do not quite see the point of it. Does it mean that the cross-examination takes place in the presence of the defendant and not at a remote distance, as happens at the moment? Does it mean that it is done a fortnight or three weeks in advance of a trial? There is no difficulty in doing it, but what is the impact on the members of the jury when they see what appears to he something like a television play being broadcast and when all the evidence of a witness—examination-in-chief, cross-examination and re-examination—is simply played to them on film? I really do not see that it is a greater ordeal for a vulnerable witnesses to be cross-examined live than it is to have a film taken of that process which can be shown to a jury at a different time.
My view is that the members of a jury are less likely to be impressed by a video film of something which has occurred on a previous occasion than by a live examination of witnesses which is taking place through a video link with a child or a vulnerable witness in another room. When the Minister replies, perhaps he will give some idea of the policy which lies behind that provision.
The cross-examination of complainants in proceedings for sexual offences is a very difficult area. Complainants may tell the truth; they may lie; they may be inaccurate in their detail; they may be plainly wrong, as happens only too often in identification cases. It may be that when a complainant makes a complaint and goes to court to support it, in the public mind, the burden of proof is indeed reversed, as was feared by the noble and learned Lord, Lord Ackner. It is thought that in some way the defendant must prove his innocence because a complaint has been made against him.
I suggest that the members of a jury, who are chosen by lot, and who are very firmly directed where the burden of proof lies, do not take that stance when they come to consider their verdict at the end of a trial. The noble Lords, Lord Warner and Lord Mackenzie of Framwellgate, referred to the statistics of acquittals and how they have decreased. But juries have heard the evidence. They are not hardened professionals; they know how people live, breathe, work and talk. They are 1298 there to judge the witnesses. Are those noble Lords saying that all those acquittals are wrong? There is no evidence to that effect. If one has any belief at all in the jury system, one believes that by and large, in the vast majority of cases, juries get it right.
The fact is that the statistics for conviction in rape charges, in adult rape in any event, have decreased because of the introduction of the concept of marital rape and date rape. I do not object to that. But the fact that those types of rape are the most frequent rapes brought before the courts means that convictions are less likely. As the noble and learned Lord, Lord Ackner, pointed out, it is for the prosecution to prove not that the complainant did not consent but that the defendant did not believe that she consented or was reckless as to whether or not she consented. That is a heavy burden of proof. But if you are going to send somebody to prison for eight, nine or 10 years for rape, surely his state of mind is an important feature in the crime. If his state of mind is that the lady consented, however wrong-headed that may be, a punishment of eight or nine years, or, indeed, any punishment, would be quite wrong.
The suggestion that a defendant should not cross-examine a person arises out of two cases, as the noble and learned Lord, Lord Bingham of Cornhill, the Lord Chief Justice, said. In those two cases, one must put oneself in the position of the judge.
Let us take the first case. That was the first time in history, about which anybody on the Bench or the Bar has ever heard, when a person who was conducting his own defence abused his right of cross-examination for days in a disgraceful way. What does the judge do? The judge must have two fears in the back of his or her mind. The first is, that if she—it was a she—interferes too much, the jury will take the side of the defendant and think that the judge is biased. The other fear is that if she interferes too much and stops this unique first-time happening, the Court of Appeal will say that the trial is unfair.
All that was put right because when it happened on the second occasion and the matter went to the Court of Appeal, the Court of Appeal laid down the firmest guidelines in which judges can have the utmost confidence when controlling their own courts in such a situation.
This proposal prevents, for example, a husband asking his wife questions in a marital rape case. He may, rightly or wrongly, believe that if only he can talk to his wife when she is in the witness-box and say, "Now look, person to person, you consented", or, "This was not rape", he will receive a proper response from her, the response that he wants, which he will not elicit through the mediation of the middle-man of a bewigged barrister.
Similarly, a father may feel the same about his daughter. We must bear in mind that not all complaints are true. Sorting out the true complaints from the untrue complaints is the problem. A father may believe that by talking to his daughter in the witness box he can get her to admit what is in fact the truth and that the recollections whisked up from the past by a hypnotist—thoughts that she had buried—are all a load of rubbish. 1299 We have all heard of such cases. So why should he not be allowed to do it? It is a basic right that a person is allowed to question and test the evidence of a complainant against him.
As regards Chapter III which deals with the protection of complainants in proceedings for sexual offences, there is nothing new in any of the provisions, save for one matter to which I shall return shortly. All that Chapter III does is to set out good practice already followed in the courts of this country. If one is to make an application to a judge in a rape case to include the previous sexual history of the complainant, one hopes that there is a responsible and reasonable basis for making such application. It is not surprising that 75 per cent. of such applications succeed; they would not be made unless counsel appearing in a particular case felt that the complainant's previous sexual history was relevant.
The one additional matter is in Clause 40(3)(b), which refers to evidence of,the sexual behaviour of the complainant … alleged to have taken place at the same time as (or within the period of 24 hours before or after) the event".If one is given permission to refer to previous sexual behaviour, it is limited to behaviour 24 hours before or after the event. This year I have been concerned in a case in which the complainant had a passionate sexual relationship with the defendant. The defendant was sent abroad to serve his country in a difficult and dangerous place. The complainant wrote passionate letters to him over a period of a couple of months saying what she would do to him when his tour of duty was over. When he came back, having had an extremely stressful time, he had some drinks in the NAAFI, and went to claim what he thought was his due, what she had promised she would do. A dispute arose between them; he was convicted of rape, but his appeal was allowed. He eventually obtained damages against the prosecuting authority for malicious prosecution.
Under this clause, such passionate letters written over several months would not have been admissible and the relationship, conducted at a distance, could not have been examined. Inevitably, there would have been a miscarriage of justice in that particular case. I am certain that there are many cases of a similar nature where one cannot confine the relationship between two people to what is happening at one time or within 24 hours of a particular incident. Experience shows that judges are alive to the difficulties of allowing evidence about previous sexual history and that such applications are successful only when they are made responsibly and with proper grounds.
There is much good in the Bill, but many of its provisions simply put good practice on a statutory basis. We shall support it. We hope that it is not trumpeted as a massive new reform to put right what the judges have got wrong, as that would simply be a public relations exercise. We shall have to develop in Committee some of the criticisms I have made.
§ 7.35 p.m.
§ Lord Cope of Berkeley
My Lords, it would be rash of me to attempt to sum up the expert debate over the past few hours. However, I should like to welcome the contribution from the noble Earl, Lord Rosslyn, and to express the hope that his duties will allow him to contribute to future debates, not only on this Bill but on other matters.
I am grateful for the helpful attitude expressed by the Minister in opening regarding amendments, and for the publication of the new style Explanatory Notes on Clauses. I found them to be helpful, particularly as I have only just picked up this portfolio. I am sure that the memoranda are also helpful to others, not only in this House.
At the same time, I have sympathy with the closing remarks of the noble Lord, Lord Thomas of Gresford. The Bill was "advertised" in the gracious Speech as a Bill to modernise the youth courts and give greater protection for witnesses. That phrase was repeated by the Leader of the House a day or so later. "Modernise" is a spin doctor's word which we have become used to. The Minister was much more accurate this afternoon—which we are also used to—in explaining that the main legislation for the overhaul of the youth justice system was the Crime and Disorder Act. This Bill adds an important new provision of referral to youth offender panels, as well as dealing with protection of witnesses in Part II.
This package flows in part from ideas which were floating about at the time of the previous government and, in particular, the Select Committee on Home Affairs in another place. But, as we have heard today, ideas also come from the Thames Valley, Scotland, New Zealand and, indeed, Sudan. I am glad to see those ideas come to fruition. I entirely agree with the important aims of the Bill—the reduction of re-offending—particularly by early action in the case of first offenders.
In my constituency when I was a Member of the other place was the young offenders centre at Eastwood Park. That has now changed its role and been rebuilt. For a number of years I used to visit the centre. The most depressing part of such visits was to see the prison officers pointing out the youths on their first evening in the centre—they had been there only a few hours—they believed would be regular customers of the Prison Service for the next 10 years, even though they were there for only a few weeks. They were able to say that quite clearly; and it was quite a large proportion as a rule.
Although there is a lot of information in the Bill and the supporting documents, at the moment we know very little about the panels. The quality of the membership of the panels will be crucial to the success of the proposals. We know little about their composition, training or, for that matter, remuneration and expenses. My noble friend Lady Carnegy of Lour and the noble Viscount, Lord Brentford, asked about that. Some information will be contained in guidance and regulations from the Secretary of State, but clearly the House would like more.
1301 Part II of the Bill deals with the protection of witnesses. We all want to see the protection of vulnerable witnesses, both children and the victims of sexual offences. It is not primarily a matter of looking after the victims properly—although we would all agree that children and others deserve to be looked after better. But if evidence is to be forthcoming and convictions obtained in the courts, proper protection is important. There is clear evidence of witnesses being seriously deterred from giving evidence, which lets the offenders off. At the same time, in the interests of justice, we must accord defendants proper rights. The noble Lord and others have rightly said that it is a question of balance.
Attention has been drawn to Clauses 26 and 27 on the use of video recorded evidence. The Law Society and several noble Lords today have objected to video cross-examination outside the trial, as provided for in Clause 27. However, there is support for video interviews being used as evidence-in-chief, with the proper safeguards. It will be extremely difficult for cross-examination and re-examination to take place on video outside a trial, particularly if it is at any time before the trial. Clearly, preparations for the trial build up to the climax of the trial and if cross-examination or re-examination is conducted at some time before the trial they would take place in a "vacuum".
Attention has also been paid to defendants who represent themselves. We heard with interest the misgivings of the noble and learned Lord, Lord Bingham, and others about the proposal. We heard again today about the two hard cases which gave rise to the provision, which we must examine carefully. Apart from the question of whether the provision is desirable, there is the awkwardness of an unrepresented defendant being resistant to appointing a lawyer, thereby making it necessary for one to be appointed by the court. We recently discussed that matter in the Northern Ireland context where similar provisions are being introduced in respect of terrorist organisations. I was struck again by the phrase which occurs in Clause 37(5) that the lawyer appointed by the court:shall not be responsible to the accused".I realise that every lawyer's first duty is to the court, but in cases where emotions run high, as they would in this instance, the accused would be concerned if he believed that his lawyer was not "responsible to" him. I believe that that is a most unhappy phrase in the Bill.
More widely, there is a potential difficulty with the European Convention on Human Rights in refusing permission to the defendant to conduct his own defence throughout the proceedings. There is a cursory statement from the Minister at the front of the Bill, pointing out that the whole Bill complies with the convention. But that does not conclude the argument and I forecast that during later stages there will be a certain amount of discussion on it.
A great deal of attention has been paid both inside and outside your Lordships' House to the issue of victims being questioned about their previous history, particularly in sexual cases. That requires the leave of a judge, but it is thought by some, including the Government, that judges are too lax in permitting such 1302 questions. Hence these clauses, which are a criticism of the judiciary in this respect. Today we had evidence by reference, rather than in person, to the noble Baroness, Lady Mallalieu, who takes the opposite view. If evidence is required, why is it being provided for in statute rather than by practice direction or other existing means which might be more satisfactory and flexible in the future? I do not believe that we can entirely solve the problem in the wording of a single statute and we may need to develop that wording. Furthermore, we will need an explanation of the rationale behind the choice of 24 hours as the restriction.
Chapter IV extends the reporting restrictions, referred to by my noble friend Lady Macleod and the noble Earl, Lord Mar and Kellie. Any restriction on the press should be examined carefully. But it is right that the current restrictions should apply from the first allegation of an offence and not just from the beginning of the proceedings. However, I do not know how often newspapers reveal the names of young offenders in particular and whether the mischief needs to be dealt with.
Chapter VI limits the right to silence, which has not been widely referred to today. It follows the Murray case in Northern Ireland. I believe that different circumstances apply in Northern Ireland, but I do not want to get into that argument at the moment. Under the Bill, one can draw inferences from the silence of an accused only if it occurs after his legal representative is present. That will cut out what the accused failed to say at the time of his arrest, or when he was questioned on the spot, or immediately after the offence. Those with more experience than I would be able to judge whether words said at that time are of importance. I believe that the introduction of Chapter VI will require a change to the police caution.
Many provisions in the Bill are left for regulations, guidance and statutory instruments of one kind or another. We do not yet have the advice of the Select Committee on Delegated Powers and Deregulation in that respect. I believe that when many important issues are to be left to statutory instruments, as is the case with this Bill and the Access to Justice Bill with which we dealt yesterday, the case is strengthened for this House to scrutinise statutory instruments more thoroughly. We have no provision to make amendments to statutory instruments—no equivalent of the Committee procedure—and we have a custom of not voting against them. Therefore, the Minister cannot rely too much on the fact that the affirmative procedure provides a parliamentary safeguard. The safeguard is fairly flimsy.
The noble Lord, Lord Northbourne, spoke of the Government spending money on prevention as opposed to cure. I am not sure about spending money. The financial effects of Part I of the Bill are given in the memorandum as a saving of £4.5 million, so no extra money is expected as far as Part I is concerned. In the longer term, it is hoped that the success of the Bill in reducing youth offending will lead to even greater savings. We all hope that the Bill will be successful and will lead to a reduction in youth offending, but it seems to me that the Treasury is, in the literal sense, already counting on that in making its calculations.
1303 I have skimmed over a large number of questions. I do not expect that we shall hear all the answers this evening. However, I have signalled some issues to which we shall need to return and reflect on in Committee. In general, I support the aims of the Bill and, in the light of today's debate, I believe it was extremely wise to introduce the Bill into your Lordships' House first.
§ 7.50 p.m.
§ Lord Williams of Mostyn
My Lords, I am grateful for the quality of the maiden speech from the noble Earl and for the reciprocation of the attitude that I put forward on behalf of the Government at the beginning of the debate: namely, that I would approach all these matters with an open mind and that I would genuinely value and welcome any opportunities to hold consultations about particular details. I am referring to the points made by the noble Viscount, Lord Colville of Culross, when we will have an opportunity to meet together with advisers and officials.
I hope your Lordships do not think that I do a discourtesy, but, essentially, the discussion has fallen into two parts: a discussion on Part I, which seems to be approved and welcomed generally, and the detailed questions about the conduct of criminal trials. I shall deal with the observations made and the questions asked in those two categories, if that is convenient.
The noble Lord, Lord Rix, who spoke towards the end of the debate, spoke about timescale. Project management issues and the development of a training strategy are being considered at the moment by the steering group which was established after the publication of the Speaking Up for Justice report, so that report is continuing.
The noble Lord asked specifically—and it is a proper question, if I may say so—about the discrepancy in penalties available for sexual offences against patients as opposed to others. I can assure your Lordships and the noble Lord—I know he has a particular interest in this area—that the penalties for sexual offences generally are already being considered in the wide-ranging review of sexual offences which was announced earlier this year. That is why it is in that category, rather than as part of the Bill.
The noble Lord is quite right in his deep suspicion that "suffering from mental disorder" is a term of art on the part of the parliamentary draftsman. I confirm his worst and gloomiest suspicions.
The noble Lord also asked about good guidance. Again, I take his point. We recognise that we shall need to produce good practice guidance for all working in the criminal justice system. That will form part of the implementation programme. A virtue of having a Bill of this sort is that one has to have, as he said, not simply fine words, but one has to look to a monitored, structured and disciplined implementation.
A little while ago now, the noble Lord, Lord Dholakia, asked whether or not the panel should be regarded as a court. We do not look upon the panel as a court. It is the facilitator of the contract. If there is a 1304 breach of the contract, it is for the court that made the original order to come to a conclusion as to whether or not the breach has been proved to its satisfaction on the usual basis, and to decide whether to revoke the order or to deal with the offender for the original offence. If the court does the latter, then the question of proportionality, which I entirely recognise, is to be determined by the court.
The noble Baroness, Lady Carnegy of Lour, asked about the details of recruitment and training. Clause 6(4), as she rightly observed, allows the Secretary of State to make regulations governing qualification to be laid down, together with recruitment criteria. I entirely agree that those details will be extremely important and we propose to consult as widely as possible with all relevant, professional bodies to ensure that we set appropriate criteria.
The noble Lord, Lord Warner, confirmed that recruitment is to be carried out by the local youth offending team, with the aim of encouraging the involvement of experienced youth justice practitioners, including magistrates, the police and, importantly, lay people. We shall be turning our minds to the question of national standards for the training required by panel members and those will be issued on behalf of the Secretary of State.
The noble Baroness also asked whether or not there would be legal representation in front of the panel. The answer is no, because it is not a court and we do not want over-formality and the over-legalism of legal representation at that time. I believe that the noble Viscount, Lord Brentford, allied himself with the noble Baroness's question. I can confidently restate that that is not in breach of the European Convention on Human Rights.
The noble Lord, Lord Northbourne, specifically asked whether the young person has a choice. I say yes. That is the whole purpose of this. It is a novel step in dealing with young offenders. I entirely agree with his phrase that it gives them ownership, in part, of their own redemption.
There will certainly be a place for befrienders where appropriate. They may take a role as part of the panel, and the panel could certainly specify them to be in contact with the young person who signed the contract.
The noble Viscount, Lord Brentford, asked whether the Bill should set out the principles of restorative justice. We have tried to imbue the first part of the Bill with those principles as part of the substructure of the Bill.
The noble Viscount asked about those who might be in care. Probably in most cases the appropriate representative of those in the care of the local authority, would be the relevant social worker.
The noble Viscount asked for any distinct news that I could give about the Thames Valley project, which the noble Earl, in his maiden speech, so helpfully described. The results are undergoing independent evaluation by researchers at the Institute of Criminology at the University of Oxford. We await that evaluation and conclusion with keen interest. When pilot projects have been set up, we have tried not to look at the headline 1305 results, which the noble Viscount mentioned, but to rely on evidence-based practice—the Home Secretary is keen on that—to find out what actually works.
I turn to the questions raised in a number of different ways about unease in court procedures, the protection of vulnerable witnesses and changes in the ability of a man or a woman to represent him or herself. The noble Lord, Lord Cope, is right in the question he alone raised. A change to the police caution is likely to be needed and that will be addressed separately.
The noble Lord, Lord Thomas of Gresford, asked about cross-examination by video link. That is likely to be relatively rare. The advantage of it is that if witnesses are particularly distressed, one can give them a particular time when they can undergo cross-examination on video, as opposed to the endless delays that seem to consume our system at the moment.
In regard to the noble Lord's reference to his client who had the passionate letters, those would remain admissible by virtue of Section 41(1)(b). I can assure him, and any future potential clients, who are unfortunate recipients of such epistles, that they will be admissible.
There is no policy here to reduce the number of acquittals, but I think that everyone concerned with this has to ask themselves why so many allegations of rape are made, so few come to the trial process and the rate of acquittal is low. That is not necessarily wrong. I agree with all noble Lords who have said that. It is not simply what happens in court that matters, or what happened as regards the two headline cases to which the noble and learned Lord the Lord Chief Justice referred. What matters is the genuine fear that we have established—I do not think it can be doubted—that women are reluctant to go to court because they fear the consequences, not of proper cross-examination or of questioning in the interests of a defendant, but of what in the past has amounted to grotesque, humiliating bullying. If women and young children simply will not go to court, it is unjust from the individual's point of view and from that of our society.
The noble Lord, Lord Thomas of Gresford, and the noble and learned Lord, Lord Ackner, asked why a man, in the context of marital rape, should not be able to put his cross-examination individually to the complainant. A man accused of raping his daughter of six or grossly and indecently assaulting her, is presently not allowed the "right" to cross-examine. That is our law and it has been since 1991. So this is no new step. One also needs to bear in mind the pressures on the family relationship, which may be deeply distressing and intimidating even to a bona fide complainant.
So we therefore introduce the concept of the independent person designated by the court who may carry out cross-examination. He is not responsible to his client because in the normal sense the defendant is not his client. But he can perfectly ably and professionally carry out cross-examination—for instance, on the basis of the complainant's evidence; on any medical evidence that there might be and on any material which might have been provided by the defendant even though unwilling. He might have made statements to the police which would be the proper basis for cross-examination.
1306 I do not believe that we shall have more miscarriages of justice. I do not believe that there is any evidence that the prohibition to which I have referred, of a man cross-examining personally the child complainant whom he is alleged to have cruelly mistreated, anecdotal or otherwise, that miscarriages of justice have come about. I fully recognise the points put by the noble and learned Lord the Lord Chief Justice. I promise, as I did before, to reflect on them. But there is still in this country a very strong view, which may well be legitimately based—I believe it is—that women complainants in allegation of rape (they are not proved at that stage) will not properly be dealt with by the criminal justice system. It is not just the two cases, but the belief. I believe that our change in the law will do something to take away that belief.
Clause 38 is designed to avoid the accused being prejudiced by the fact that he is prevented from cross-examining in person. It seems to me that that is a perfectly proper protection for the defendant if the judge explains it and gives a correct direction. The noble and learned Lord the Lord Chief Justice referred to the Scottish experience about there being a "gateway" as it were, which is the interests of justice test. Research into the effectiveness of the Scottish legislation came to the conclusion that that gateway was very widely drawn and that previous sexual behaviour evidence was admitted much more often than intended by Parliament. I am referring to the Scottish Office Central Research Unit research conclusions of 1992 as regards sexual history and sexual character evidence in Scottish sexual offence trials.
One needs to draw the distinction, which the noble and learned Lord, Lord Ackner, did, between the question of consent and belief in consent. If one puts one's mind and eye to the detail of the Bill, that distinction is perfectly clearly drawn. There is no question here of altering the burden of proof; it remains intact. I know of the comments made by the organisation, Women Against Rape. Our conclusion is that it is important to protect women both from inappropriate questions and the inappropriate questioner.
Reverting to the question which I put as part two of our discussions, the noble Viscount, Lord Colville of Culross, asked a particular question about video cross-examination. It will be perfectly possible for the court to direct that a witness's evidence be admitted on video and then to direct that any further evidence, which may well be necessary, or cross-examination, could be carried out on a live link. The noble Viscount asked about video cross-examination. The whole purpose of Clause 27 is to reduce the trauma of giving evidence for vulnerable or frightened witnesses. I take his point about the Criminal Procedure and Investigations Act 1996, particularly his point about pre-trial disclosure. I tend to agree with him that cross-examination would not be able to occur until the relevant material had been disclosed. We would not anticipate courts making directions under Clause 27 until a plea and directions hearing had taken place.
1307 I totally agree with him that it is for the courts and the Crown Prosecution Service to focus particularly on these questions. Without any further reflection and as an immediate response, I am bound to say that his suggestion that video link cases ought to be prioritised and possibly marked in a special way, is really important. The same applies to his suggestion that judges must manage cases and give priorities for plea and direction hearings. They ought to have the power to make directions, for instance, that the defendant attends promptly for appointments. That is all consistent with the Lord Chancellor's view that we must manage cases and not let the legal system manage us.
Generally speaking, I believe those are the issues that have been raised. There was a particular question from the noble Viscount, Lord Colville of Culross, as regards Clause 26(3). The test is virtually the same as that in the present test in Section 32(4) of the Criminal Justice Act 1988. If the noble Viscount were to look at that he will see that it is virtually identical. The noble Baroness, Lady Anelay of St. Johns, suggested that we went wider than the Speaking Up for Justice recommendations. In fact, the list of offences in Clause 57 is slightly narrower than the list of offences in Part I of the Criminal Justice Act 1991.
Those are the points which struck me as being of significance when we debated these matters. There is no doubt that the concept of the youth panel is capable of being a milestone in the way in which we deal with young offenders. It is critical to get at them immediately. I was pleased to note the general welcome for this concept. If these first steps are successful, the Secretary of State will be able to expand the concept, as the noble Lord, Lord Thomas of Gresford, said. I agree with the thought that the noble Lord put forward. We do not want to stand still on what is bound to be, in the nature of things, a limited category of first offenders who plead guilty.
Certainly, there is a good deal of food for thought in the detailed questions raised about what I can generally describe as court and court-related procedures. I respectfully reiterate the suggestion that if Peers and advisers meet with Ministers, officials and advisers in whatever context or category is thought appropriate, we shall get a better outcome. I am quite sure that many of the fears that have been raised are capable of being assuaged. I commend the Bill to the House.
On Question, Bill read a second time, and committed to a Committee of the Whole House.