§ 7.21 p.m.
§ Baroness Byford rose to ask Her Majesty's Government what progress they are making in reviewing the way in which vulnerable or intimidated witnesses are treated in the criminal justice system, with particular reference to witnesses in trials of rape or indecent assault.
§ The noble Baroness said: My Lords, I am not a lawyer or a magistrate but I was an active member of the Women's Royal Voluntary Service in Leicestershire. We worked alongside the police and the Prison Service and gave practical help to witnesses and their families at the Crown Court. I count myself fortunate to bring this Question before your Lordships tonight. I thank those noble Lords who will follow me.
§ I wish to begin by commending to anyone who has not yet seen it the Home Office report, Speaking up for Justice. The interdepartmental group makes 78 recommendations. Therefore I have to conclude that our current system leaves a great deal to be desired. Moreover, none of the recommendations is earth shattering or extreme. On the contrary, they read as condensed, common sense recommendations.
§ I am sure that subsequent speakers will share their expert knowledge of facets of the system. However, I call to your Lordships' attention one aspect which both disgusts and repels me and millions like me. I refer to the crime of rape and the treatment of the victim by the medical inspection team, the police, the legal service, 88 the courts and the media. It is treatment which sells newspapers, fills public galleries and allows victims to be pilloried for their innocence. It is treatment which is deplored but still continues on one pretext or another. "Well, it's mainly date rape", seems to be in vogue at the moment, as though being on first name terms with one's victim makes it more acceptable. On the contrary, date rape and, more importantly, rape within a relationship are not only assaults but a betrayal of trust.
§ During the passage of the Criminal Justice Bill through this House in February and March of this year, my noble friend Lady Anelay spoke of our concern at the way in which victims are dealt with in our courts. I accept that the accused person is entitled to a fair trial and has rights, but so, too, has the victim.
§ Witnesses may be divided initially into two groups: those who are the victim; and those who are bystanders. Both types come in all ages and range from the articulate and the educated to those suffering from learning disabilities, or physical or mental illness. They all face a system which encompasses reporting the crime, assisting the police, making a statement, perhaps attending an identity parade, reporting to the court, giving evidence, undergoing cross-examination, awaiting the verdict and then living with the consequences. The way in which those persons are dealt with varies from area to area, court to court and official to official. Unfortunately our criminal justice system sometimes does too little to protect the weak, the disadvantaged, the abused and the frightened.
§ I have the privilege of knowing a very brave lady who was herself a victim—in her case multiple rape over a period of hours during which she was imprisoned by her attacker. She has not had to cope with being cross-examined by her attacker. He pleaded guilty. Noble Lords should know that he was convicted of an earlier rape upon his long-term partner.
§ While we were awaiting the report, much was being said. On 20th May of this year the Home Secretary confirmed that defendants in rape trials will be barred from cross-examining their victims in court. This was less than two weeks after the Lord Chief Justice had urged judges to put an end to lengthy and humiliating cross-examination of victims by defendants. It has also been reported that the Home Secretary proposes to prevent the accused from conducting his own defence and to introduce restrictions on the admissibility of sexual history in evidence. I am sure those measures will be welcomed; but when will they be introduced?
§ The charity, Victims of Justice, in an article on 7th March of this year quoted 1,842 reported rapes in 1985 and some 5,039 in 1994, with a conviction rate which fell from 24 per cent., or 442 cases, to 8.4 per cent., or 423 cases.
§ On 17th June this year, the Guardian stated that of the 5,759 reported rapes in the previous 12 months, only 1,380, or 24 per cent., actually reached court. In the main this was supposed to be due to a fall in rape by total strangers from 552 in 1985 to 460 in 1997–98; and to the difficulty of proving rape by an acquaintance or friend.89
§ The criminal justice system already sets limits on the court procedures applied to children and those with special educational needs. The charity, Victim Support, feels that those limits should be set on the cross-examination of rape victims by their aggressors, since it feels that to rely on judges' discretion is to trust that they will implement the guidelines and risk the judgment being overturned on appeal.
§ I turn now to the details in the report. The interdepartmental review supports many of the views I have expressed. Many of its recommendations could be implemented quickly and at little extra cost. I give a few examples. Recommendation 36 refers to the use of CCTV in the courtroom. Recommendation 39 relates to media restrictions on the reporting of details likely to lead to the identification of witnesses. Recommendation 43 refers to preserving the dignity of witnesses by disallowing unnecessarily aggressive or inappropriate cross-examination. Recommendation 44 relates to restricting the right of multiple defendants to raise the same point more than once.
§ Recommendation 52 refers to locating witnesses so that they cannot be viewed from the public gallery. Recommendation 53 refers to providing separate facilities for medical examination of the victim or the suspect. Recommendation 58 refers to the introduction of a mandatory prohibition for unrepresented defendants personally to cross-examine their victims. Those are only a few of the 78 recommendations, but even their implementation might encourage more victims to press charges and take their attackers to court.
§ I spoke earlier of my friend who openly and gratefully acknowledges the treatment which she received in Leicestershire. After her attack, she was looked after with great consideration, compassion, kindness and competence. Officers and voluntary support workers alike treated her with great humanity and helped her to maintain her dignity. I would not wish any Member of this House to think that our criminal justice system is all bad; like the curate's egg, it is good in parts.
§ In Leicestershire, the police force is using 1 per cent. of its sponsorship to raise £20,000 to establish specialist units in two Leicester hospitals. They will give a more friendly welcome to people who are under stress. The facilities at one hospital have already been identified and both are planned to be ready for opening in April 1999. The project would not have been possible without business sponsorship and support from local groups and individuals. It is a good example of the community's commitment to supporting vulnerable people. The units, with their specialist video facilities and counselling rooms, bring together the police, the health trust, social services and the voluntary sector, which are all so important in giving support when a person first reports a crime.
§ I commend the Home Office report to your Lordships. As the Law Society stated, there should be national standards and detailed guidance covering the treatment of vulnerable witnesses at all stages. I agree and I urge your Lordships to use your expertise in encouraging others to take on board many of these recommendations. 90 In doing so, I hope that other victims will be encouraged not only to come forward but to press their cases through the courts.
§ 7.31 p.m.
§ Lord Borrie
My Lords, I warmly welcome the way in which the noble Baroness, Lady Byford, initiated tonight's debate. The recently published report, to which the noble Baroness referred, makes it clear that there are vulnerable and intimidated witnesses other than the most obvious examples of young children and adults who have communication or learning difficulties. Ordinary adults, those who are normally self-confident and even robust, can be intimidated by what is to them the peculiar circumstances of a criminal trial, particularly when being questioned about the most intimate and personal matters. It is good that the Government have already indicated their broad support for many of the recommendations. The noble Baroness mentioned that there are 78, and it is unlikely even that our hard working Minister will be able to respond to all of them tonight as the report was published only two weekends ago.
I wish to concentrate on the way in which children are treated in the criminal justice system, particularly when they are victims or witnesses in trials for rape or indecent assault. I must declare an interest as a member of the fundraising board of the Justice for Children Appeal. For reasons which your Lordships will appreciate, it was established by the National Society for the Prevention of Cruelty to Children. The body was set up in order to focus attention on the particular kind of cruelty which can be involved when children are caught up in a system which has been devised for adults. The worst kind of cruelty may be when the victim of child abuse must go through the ordeal of giving evidence. That can be as traumatic as the abuse which he or she originally experienced. I suggest that there is a wider public interest than that of avoiding unnecessary cruelty to one victim: if a child is too distressed and too bewildered to tell his or her story, the guilty person will walk free and may well harm other children.
My noble friend the Minister is a former trustee of the NSPCC. He will be aware that a survey by the society in 1995 found that the system so badly affected children that 75 per cent. said that they would not report abuse if it happened again and 25 per cent. said that the court case was as bad or worse than the abuse itself.
I believe that two needs are almost self-evident. The first is the availability of help and support for child victims and witnesses. The second is to make appropriate changes in law and practice in order to ensure that our system of criminal justice is more sensitive to the needs of children.
A year or so ago I was greatly impressed when I visited the south London branch of the NSPCC child witness support service in Penge. Teams of helpers are available to give children and their families practical and, just as important, emotional support when children are preparing for the unfamiliar experience of giving evidence in court. The team tries to answer the kind of questions and worries which children typically have.
91 The excellent and long-experienced organiser, Maureen Carson, says that the most common worry of children is that they will be sent to gaol rather than the accused. As Mrs. Carson puts it, if that is at the back of their minds, they can hardly concentrate on what they are saying. The most obvious objective of the Justice for Children Appeal Fund is to raise the £2 million to £3 million needed to provide equivalents of the south London team and others elsewhere so that there is a comprehensive network of adequately resourced support and advocacy teams throughout the country.
However, as the noble Baroness indicated, in relation to adults as well as children, for whom I seek to speak, there is a need to improve the criminal justice system itself. It would be wrong of me to suggest that only the NSPCC and other private bodies such as Victim Support have a monopoly on concern. This Government and the previous government have sought to be active in, for example, commissioning research and evaluating existing legal provisions which enable the use of video recorded evidence. The Government have worked with the NSPCC in seeking to reduce the awful time-lag before cases come to trial—that must be worse for children than adults—and in revising what is called the "Young Witness Pack", which I have with me and which was made available at its official launch on Friday last by the noble and learned Lord, Lord Bingham, the Lord Chief Justice.
It is true that in many cases a child will be screened off from the man charged with abusing her and allowed to give video taped evidence. But that is not universal and it is nine years since the Pigot Report, commissioned by the Home Office, proposed that children should invariably be cross-examined in a child-friendly environment where they will feel more relaxed before the trial, with a video of their answers being shown to the jury. Only rarely, when new evidence arises requiring cross-examination, would they need to be called into the court itself.
I notice that paragraph 8.56 of the recently published Home Office interdepartmental report states:This recommendation has not been implemented. It has been argued that pre-trial cross-examination would not remove the need for further cross-examination by the defence at the trial and might add to the child's distress in having to go through the cross-examination on more than one occasion".However, it refers also to the recently published Utting report; that is, the report by Sir William Utting in 1997 entitled People Like Us which recommends the implementation of the nine year-old Pigot report in the way that I am suggesting. There should invariably be cross-examination beforehand in a child-friendly atmosphere and it should be video-recorded. I hope that the Government will look very favourably on the ideas in the report.
§ 7.40 p.m.
§ Lord Meston
My Lords, since this Question was first tabled for debate and since the specific topic of rape cases was last debated at the Report stage of the Crime and Disorder Bill there have been, as your Lordships have already heard, three important developments.
92 First, there is the judgment of the Court of Appeal in the case of Brown (Milton) on 6th May stating that it was clear duty of the trial judge to do all that he could, consistently with giving the defendant a fair trial, to minimise the trauma suffered by the other participants in the court process. That judgment contains a firm, authoritative restatement of the judge's power to control and curtail those dangerous, unrepresented defendants who try to get some sort of a "kick" out of humiliating cross-examination of their victims to add insult to injury. The judge has to ensure that any defendant has a proper opportunity to put his case and that the defendant is not prejudiced in the eyes of the jury. The judge has also the power to insist that the defendant does actually put his case to the witness, and the power to insist that he does not unnecessary report himself; and, if necessary, the judge can import a timetable on the defendant as on any advocate.
It has to be remembered that those problem cases of unrepresented defendants charged with sexual offences are only few in number. But they can have a disproportionate deterrent effect on other victims of sexual offences, not least because what is reported in the press is the fact of the personal cross-examination of the victim by the defendant and the judge's comments usually at the stage of sentencing after conviction. However, the press does not report the controlling measures taken by the judge, and his remarks to the defendant in the absence of the jury during the trial itself. It is noticeable that in the case of Brown, the Court of Appeal observed that the judge had done everything he thought he could do to protect the complainants.
The second important development is the recent report of the interdepartmental working group on the treatment of vulnerable and intimidated witnesses in the criminal justice system. On the particular problem of direct, personal cross-examination by defendants, the report recommends a mandatory prohibition in cases of rape and serious sexual assault, with a number of other proposals for dealing with the most intransigent defendants. Some people will say that the right of the defendant to represent himself, however incompetently, and subject to firm control by the trial judge, should not be infringed just because of a small number of difficult cases. They will argue that video technology or screens in court can be tried before altogether barring personal cross-examination by the defendant. It can also be said that by no means all defendants who act in person, unrepresented, do so aggressively or unpleasantly; some conduct themselves properly and politely. However, on balance I think that the recommendations of the report provide the better solution for this problem in the small number of cases in which it arises.
Of far more significance in cases of alleged rape and sexual offences, whether or not the defendant is represented, is the recommendation in the report for amendment of Section 2 of the Sexual Offences (Amendment) Act 1976 concerning evidence and questioning about a complainant's recent sexual history. The vagueness of the existing statutory provision, only relieved to some extent by decided case law, is a reflection of how difficult that problem is and will 93 remain. The report points to alternative legislative provisions in Scotland and New South Wales. Any amendment to the 1976 Act which is to be an improvement must do more than simply replace one set of provisions with another set of provisions which are just as vague and subjective but in different ways. That is what is said to have happened to the Canadian criminal code. If the Scottish model is to be used, there most certainly must be further consultation and research, followed by the use of considerable drafting skills which will be required to provide a fair, workable and lasting replacement for the 1976 Act.
The working group's report is an impressive and comprehensive piece of work dealing with a much wider range of problems than those particularly referred to in the Question before the House. It covers all types of vulnerable witnesses and their treatment both in and out of court and explores both the law and practical procedures. Out of court, it suggests that victim support schemes are somewhat patchy geographically. In court, I welcome the report's premise that there should be a generally available "menu" of measures to help witnesses.
The report recognises that the system of justice depends on the willingness and ability of witnesses to give evidence and that the quality of their evidence depends on removing stress and inconvenience. Lawyers take for granted going to court and talking in public. We sometimes forget how nerve-racking some people find the whole experience, whether or not they themselves have been the victims of the crimes alleged. I remember calling a dentist to give expert evidence in a civil case and after two harmless questions from me in examination in chief, he passed out. On coming round, he said he found the whole experience a terrible ordeal. It did not seem to me to be the time and place to remind him how we feel when going to the dentist.
However, there is much in the report of practical assistance. Witnesses no longer have to give their addresses in criminal cases. Children often give their evidence after the lawyers and the judge have removed their wigs. Moreover, I certainly welcome recommendation 52, to which the noble Baroness referred, concerning the placing of what is now inappropriately called the public gallery. In our user-friendly courts, the supporters and friends of the defendant are often uncomfortably close to the witness box.
As the noble Lord, Lord Borrie, said, how much more difficult it must be for child witnesses having to describe matters which adults find awkward to talk about. The time limits on this debate prevent further discussion. However, I welcome recommendations 45 and 46 of the report in relation to video recorded pre-trial cross-examination as proposed in the so far unimplemented Pigot Report. That will add to the existing law in ensuring that a child's evidence is tested when it is still fresh; it will relieve the pressures on child witnesses which can lead to charges having to be dropped; and it will encourage early and realistic pleas of guilty.
94 The most encouraging part of the report comes at the very end, in Annex J, where current initiatives and research into child evidence are summarised. They include the third recent development which should be mentioned—the launch last week of the "young witness pack". The work of the NSPCC in the whole area of helping young witnesses—work which some years ago was suspected by the judiciary as tainting the evidence of children—is now justifiably respected in reducing the ordeal for them and in improving the quality of their evidence. Cases involving children require special handling and skills. No judge, magistrate or advocate should be involved in cases involving child witnesses on important issues without having seen the good practice video "A Case for Balance' produced by the NSPCC last year.
The aggressive advocacy or the clumsy, stilted questioning, which are just tolerable in cases involving adults, are not acceptable when children are giving evidence. The legal profession is aware of the importance of that point in terms of training and professional conduct. The speed, efficiency and sensitivity with which cases are handled within the criminal justice system, dealing with what happened to children in the past, have considerable implications for the progress and outcome of their cases in the family justice system which decides what happens to them in the future.
§ 7.50 p.m.
§ Baroness Kennedy of The Shaws
My Lords, I welcome this opportunity which has been given to us by the noble Baroness to discuss the treatment of vulnerable witnesses within our legal system. As we have already heard, a report has been published on vulnerable and intimidated witnesses. That report contains an important set of recommendations which I hope will find their way into the system at some point and into legislation where that is appropriate.
I have spent over 25 years practising at the Bar within the criminal justice system. During that time I have taken up opportunities to speak to women's organisations up and down the country. I have probably done so more often than any other lawyer in this House. Those women's organisations have covered the spectrum of political opinion and of age groups. They include women of every colour and women who are students as well as professional women. I have spoken to women who are knowledgeable about the law and to women who know little about it. From those discussions has emerged the concern that women feel at the way in which offences against women, such as rape and indecency, are dealt with by the courts.
Women will repeatedly tell you that if such an offence were perpetrated on them or on their children they would be unsure whether to take the step of commencing legal proceedings. It is shameful that even women magistrates will often say, "I am not sure I would expose myself or a member of my family to such a process". However, much headway has been made. Considerable shifts have occurred in the policing and investigation of sexual offences. There has been a great improvement in the responses of the courts.
95 However, we still have a long way to go. If we want to gain the public's confidence in the system, we need to do a great deal of work in this area.
The low conviction rate in rape cases is still a scandal which we must address. I am pleased that the Government wish to take a number of measures as regards trials for rape and indecency. One of the remaining problems is the profound resistance of the profession and of the Bench to changes in what are perceived to be fundamental rules. Yet considerable change has occurred with regard to children giving evidence in our courts. The system has not collapsed under the novelty of that change. Over a number of years many of us expressed concern about the way in which children were cross-examined in the courts as children were terrified to give evidence on matters which made them feel profound shame. They were terrified of giving evidence about adults with whom they had often had a relationship.
Following the Pigot Report, interesting and yet resisted changes occurred. Two-way video is now used regularly in our courts to allow children to give evidence without their having to enter the courtroom at all. They can give evidence in an adjoining room and be able to see the lawyer or the judge who is speaking to them. Wigs are removed. Children's experience of giving evidence has been greatly improved. However, those changes were resisted by much of the Bar and by some on the Bench. It was said that one of the basic rules of our system is that witnesses should give evidence in person and defendants should have the opportunity to see them across a courtroom. However, the changes I have mentioned have not interfered with justice. I welcome the fact that the report suggests that where a court or a judge considers that an adult witness may be vulnerable similar steps may be taken to protect such witnesses in trials involving sexual offences.
The profound conservatism of the Bar is often concerned with ensuring that defendants' rights are protected. As a lawyer committed to the rights of defendants I am anxious to ensure that those rights are maintained. However, I strongly support the recommendation that a prohibition is made on unrepresented defendants personally cross-examining complainants in cases of rape and serious assault. A number of cases have occurred where such cross-examination has continued for a number of days. Noble Lords such as the noble and learned Lord, Lord Ackner, say that experienced judges can hold the reins in the courtroom and can prevent such cross-examination. However, in the case of particular defendants that becomes unseemly and impossible. Not all judges have the force of personality of the noble and learned Lord, Lord Ackner, and can strike sufficient terror into a person's heart to prevent that kind of behaviour by a defendant. It is not fitting for the system to witness the kind of exchanges that would inevitably occur if judges alone had to prevent invasive cross-examination. The noble Lord, Lord Meston, spoke of the deterrent effect on women of some cases that have occurred. It is shocking to hear women speak at public meetings of their fear that this is a choice available to 96 their assailant which he may well exercise, as it can strike fear into the victim and possibly prevent her giving evidence.
I welcome the change we are discussing. I hope that it is not resisted by my noble friends. However, I note that some of my colleagues from the Bar will speak after me in this debate. I suspect that they will err on the side of conservatism. It is important that for once we listen to what women are saying about the way in which the criminal justice system has failed them. This matter is particularly important as regards cases where women are related to, or have had a relationship with, the man who is cross-examining them. Often men who have an obsessive interest in a previous partner are the very people who choose to cross-examine them. This also occurs in domestic violence cases. I welcome Recommendation 59 which states that in particular circumstances the prohibition can extend to other kinds of case according to the judge's discretion.
I also welcome the restriction that will be imposed on the cross-examination of women on their sexual history. The report suggests that we should consider the situation in Scotland or in New South Wales in making that limitation. I make another suggestion; namely, that the Government should consider the case of Regina v. Morgenthaller. That case came before the Supreme Court in Canada. The judgment in that case became seminal in the Canadian system in relation to the handling of rape cases. The judgment was given by Madame Justice Beverley McLoughlin, a Supreme Court judge. She was interesting about the way in which judges, prior to that judgment, as here in Britain, very often allowed the cross-examination of victims inappropriately—where it was unacceptable and invasive—as a result of their inappropriate attitude to women's sexuality. Men in our courts still often have the view that certain kinds of women invite sexual assault. There is often an indulgence given to men on trial that they are somehow the victims of their own libido, and that somehow, like the washing machine cycle, once they are turned on there is no going back. Women are held responsible for male activity.
I therefore urge the House to support the recommendation that we introduce and examine other ways of dealing with sexual history and seek to reduce cross-examination in relation to it; and that we accept the body of evidence from Professor Sue Lees that this kind of cross-examination is being allowed much too regularly by our judges.
Finally, good judicial training can remedy many of the faults of our judiciary with regard to the conduct of these cases. I hope that those judges in our midst will lend their weight to good training on gender issues within our legal system.
§ 8.1 p.m.
§ Lord Ackner
My Lords, I seek in no way to detract from my total acceptance that rape is a serious offence for which a period of imprisonment is almost inevitable. It is so serious in some cases that a sentence of imprisonment for life is properly imposed. I also accept entirely that a woman is entitled to withdraw her consent 97 at any stage—although, if the signals change from green to red without any intermediate amber, she must not be surprised if from time to time juries acquit.
My first point is that there are a number of special rules which apply to rape cases and to cases of serious sexual offences. There is the anonymity that is conferred upon the complainant. There is the restriction on questioning designed merely to go to the issue of her credibility which would be permitted in relation to other offences. We have recently removed the obligation to give directions on corroboration which contained a warning to juries about the various unsuspected motives that there might be for a made-up case. What we have not yet reached—and I am delighted that that is the case—is changing the onus of proof. It is still obligatory for the prosecution to prove the case against a defendant beyond all reasonable doubt.
I make that point because the phrase, "victims of rape", is used throughout the Home Office report. I refer to pages 61, 64, 65, 66 and 67. Strangely enough, it is even used in the Bar Council briefing. That gives the impression that the case is already decided or that there is some prima facie assumption to be made against the defendant. That is utterly wrong. The term "victim" should in every case refer to "the complainant". That is what we are concerned with. A victim is someone against whom the offence has been committed.
I have made submissions twice recently to your Lordships in relation to the Crime and Disorder Bill, both in Committee and on Report. It gives me a profound sense of relief, as it no doubt does to your Lordships, that there is no need for me to repeat those submissions because I find that a great deal of what I said, and what was said by the former Lord Chief Justice, the noble and learned Lord, Lord Lane, has been repeated by the current Lord Chief Justice in the case of Regina v. Brown, to which reference has been made. In regard to my previous comment about victims of crime, I wish to refer to what was said by the Lord Chief Justice. His judgment states at page 6:Where, for example, a defendant is accused of rape, the trial cannot be conducted on the assumption that he is a rapist and the complainant a victim, since the whole purpose of the proceeding is to establish whether that is so or not".I submit that the recommendation of the Home Office committee is flawed because it does not draw a distinction between the two distinct categories of rape. One is "date rape", referred to on 15th June in an article in The Times giving an indication of what the special Home Office committee was in the process of discovering. The article states:Half of rapes are 'date rapes' by boyfriends, former partners or a close friend … The finding—an increase from 35 per cent [to 50 per cent. between 1985 and nowt—is thought to account in part for a sharp drop in the conviction rate".The article points out that although rapes reported to the police rose by 14 per cent. in the period 1996–97, the conviction rate fell from 24 per cent. in 1985 to 9 per cent. in 1996. The article continues:Initial findings suggest that this might be related to a large proportion of rapes involving intimates (date rape) being reported and those offences tend to be more difficult to prove than those involving strangers".98 Rapes by strangers fell from 30 per cent. to 8 per cent. of the total.
I submit that it is utterly unrealistic to say that a defendant in the date rape type of case should be debarred from personally asking questions. His reason for wishing to ask questions may not be idiosyncratic. It may be due to the belief, which may be a justified one, that the complainant, when faced by him asking questions, will no longer be able to continue to lie about what occurred. To suggest that someone intimately known to the complainant should not be allowed to ask any questions is totally unjust.
In regard to rape by a stranger, the position is significantly different. Once again, we have the advice of the Lord Chief Justice in the Brown case, which reads as follows:Judges do not lack power to protect witnesses and control questioning. The trial judge is the master of proceedings in his court. He is not obliged to give an unrepresented defendant his head to ask whatever questions, at whatever length, the defendant wishes. In a case such as the present it will often be desirable, before any question is asked by the defendant of the complainant in cross-examination, for the trial judge to discuss the course of proceedings with the defendant in the absence of the jury. The judge can then elicit the general nature of the defence and identify the specific points in the complainant's evidence with which the defendant takes issue, and any points he wishes to put to her. If the defendant proposes to call witnesses in his own defence, the substance of their evidence can he elicited so that the complainant's observations on it may, so far as relevant, be invited. It will almost always be desirable in the first instance to allow a defendant to put questions to a complainant, but it should be made clear in advance that the defendant will be required, having put a point, to move on, and if he fails to do so the judge should intervene and secure compliance. If the defendant proves unable or unwilling to comply with the judge's instructions the judge should, if necessary in order to save the complainant from avoidable distress, stop further questioning by the defendant or take over the questioning of the complainant himself. If the defendant seeks by his dress, bearing, manner or questions to dominate, intimidate or humiliate the complainant, or if it is reasonably apprehended that he will seek to do so, the judge should not hesitate to order the erection of a screen, in addition to controlling questioning in the way that we have indicated".I ask the Minister to indicate to what extent the judiciary was consulted by the civil servants who sat on this committee. It does not look as if those civil servants have had the advantage of the practical advice that would be given by practitioners and members of the judiciary. I suggest that we leave this matter to the advice given by the Lord Chief Justice, knowing that it will be emphasised by the Judicial Studies Board in its relevant courses.
§ 8.12 p.m.
§ Baroness Mallalieu
My Lords, as a criminal lawyer frequently engaged in trials which concern sexual offences, vulnerable witnesses and, sadly, child witnesses, I should declare an interest. I should also declare an interest as one of the women to whom my noble friend Lady Kennedy of The Shaws referred. If either of my two young teenage girls came to me with an allegation of sexual attack, I would, as a result of my own experiences, think very long and hard before urging them to take the matter to the police and thence through the courts, which is perhaps some indication of how wrong I think matters are at present.
99 That said, I am bound to sound a note which may perhaps sound slightly discordant to some of those who have spoken before. Although most of the report is admirable in the extreme, I detect in some parts of it an understated assumption—indeed one which is clearly stated in Recommendation 43—that witnesses in the criminal courts, particularly vulnerable ones and ones who are intimidated, are inevitably truthful. Recommendation 43 speaks of witnesses "performing a public duty". I have no doubt that the vast majority of them are doing so or are trying to do so; but any changes which we now make must take into account the fact that some witnesses, including some vulnerable witnesses, are not.
My experiences in the courts have led me to believe that false allegations are on occasions made, in particular by children, sometimes without any appreciation that, for example, a conversation with a schoolfriend about a disliked step-parent may so easily lead to a trial at the Old Bailey and that, once made, an allegation which may be either exaggerated or plain false can trigger a process which is then virtually unstoppable. To find the courage or the means to retract such a falsehood is usually impossible for an adult, let alone a child. No changes must be made which prevent the truth emerging in such cases. The aim of what the Home Office decides to do must be, as I am sure it will be, to try to ensure that justice is done, not only by seeing that those who have committed crime are tried and convicted but also that those who are falsely accused are not.
In the moments that I have available to me I shall concentrate on victims of sexual offences. I think it is right to remind the House that those victims include men and boys, as well as women and girls. This is not a battle of the sexes. These offences strike at all parts of our community and all age groups. The question that the Home Office will no doubt consider in looking at this report is how we can make it easier for those people to come forward and give their evidence.
If one speaks to someone who has been attacked and has not reported it and asks them why they have not reported it, in my experience the answers almost invariably fall into one of the following categories. The first is delay. They do not want the matter, and in particular a court case, hanging over them for months on end. They want to get the matter out of the way and put it behind them. Secondly, they are afraid of having to see the defendant and possibly confront him in court. Thirdly, they are embarrassed to speak out in front of a lot of other people in public, particularly about intimate matters. Fourthly, they are frightened of being unable to stand up to the barristers and feel that they will do badly in cross-examination. Lastly, they often do not think that they will be believed.
Of all the recommendations in the report, one which has not yet been mentioned I commend in particular to your Lordships when you come to consider it. Recommendation 55 states that:In the case of victims of rape or serious sexual offences, pre and post-trial support should be provided by an agency other than the police, such as Victim Support".100 What a vulnerable or intimidated witness needs in these cases is a friend outside the family, not part of the investigating process or the investigating authorities, with no agenda save to ensure that the witness understands the options and procedures and can talk freely and in confidence to someone who can act as an intermediary with the police and the court, if necessary. As is so often the case today, a police officer trying to fulfil that role sometimes has a primary purpose of ensuring that the case proceeds to conviction. In a sex case, particularly where a child is involved, pressure and intimidation, one way or the other, too often comes from within the family, particularly when a family member is being accused. Vulnerable witnesses need, above all, a supporter to be available for them before and after the trial and during the evidence, if they so wish.
The witness should have the choice of giving evidence live in open court; in court behind a screen, hidden from the defendant; or on closed circuit television. Anything which helps to make a witness feel more at ease is likely to assist the truth to emerge, whatever the truth is. But the choice that the witness makes should be an informed one, and the witness should know that the impact on a jury of evidence given on a television screen is much reduced. I have no doubt that closed circuit television is an advantage to the defence when it is used.
In appropriate cases it must be right that cross-examination on video well before the trial should be possible. But the defence and the Crown must retain the ability to ask further questions by video link, at trial if necessary. Those of us who practise know very well that all the prosecution witness statements, the defendant's full instructions and the statements of all the defence witnesses are sometimes not available until very shortly before the trial and may require further questions to be asked of a witness if justice is to be done.
If those changes alone were made, they would in many cases go a long way to addressing delay and to the question of facing the defendant in person and speaking out in public. I am not entirely happy with the suggestion that no defendant in a sexual case should ever be permitted to cross-examine the complainant. My reasons differ perhaps from those of the noble and learned Lord, Lord Ackner, though I agree with the points he made. Few defendants are foolish enough to do so because cross-examination in those circumstances is specialist and requires specific skills and experience.
As we have been told, the judge has the power to intervene and stop abusive, insulting or intimidating cross-examination. Perhaps in an appropriate case, where the specific conduct of a witness, the type of offence—I think particularly of stalking offences and matters of that kind—or the relationship or conduct of the accused, make it in the interests of justice for a defendant to be protected and indeed prohibited from cross-examining the judge should be able to require that he be represented for that purpose. However, I have known a victim in a rape trial who was anxious—no, determined—to confront her attacker in person, and a devastating witness she was. Hard rules can lead to injustice.
101 Similarly, 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.
Of course, it is right that no witness, even one who is telling lies, should be bullied, and judges can and do prevent that happening. No judge who is robust is likely to be criticised. Sexual allegations can be made with relative ease. They can be difficult to disprove because so often only two people are present and there is no independent evidence. The truth can only emerge if the evidence can be fairly given and fairly tested. Witnesses certainly need more help than they receive at present; but those who are falsely accused do not need less.
§ 8.23 p.m.
§ Lord Lowry
My Lords, I hope your Lordships will forgive me if I intervene briefly in this discussion. I will confine myself to the proposal to prohibit a defendant appearing in person from cross-examining the complainant.
I sat as a trial judge and in the Court of Appeal in a jurisdiction where rape was regarded as an extremely serious offence. I share the view that before severe punishment can be meted out, the case must be proved. The noble Baroness, Lady Kennedy, rightly reminded your Lordships not to be afraid of innovation. As a profession, we are rather conservative and sometimes that has stood in the way of desirable reform.
On balance, I am against the proposal to prohibit a defendant from cross-examining in person. I say "on balance" because I appreciate that a number of good points have been made in favour of such a prohibition. However, in my opinion it would be a mistaken response to the deplorable proceedings two years ago about which everybody in the House knows.
It is recognised that the principle of a fair trial demands that the defence shall be able to cross-examine the prosecution witnesses. Therefore, in order to prevent the defendant from cross-examining the complainant, it is proposed to take away from him the right to conduct his own defence and give him only one way of being defended; that is, by an advocate. But a defendant may be strongly committed to defending himself. He may be a talented debater and possibly a successful criminal advocate. Or, in a date-rape case—most of the cases of controversial cross-examination will be of that type—the defendant may feel that he knows exactly what did and did not happen and may wish to rely on that first-hand knowledge combined with his forensic talents—real or imaginary.
102 I realise that such cases will be few. But that is not a good reason for taking away the right to defend oneself personally. The answer to the problem is that the trial judge should control any excesses, whether of the defendant or of his advocate. That has been sufficiently explained this evening. It is vitally important that, in a case tried by a jury and particularly in a criminal case, the judge should not give the appearance of being hostile to one party; in the sort of case we are discussing, that means hostility towards the accused. It is part of the expertise of a good judge to be able to control the proceedings without giving that appearance. My noble and learned friend Lord Ackner and the noble Baroness, Lady Mallalieu, explained how control is kept and how that can be done without open hostility towards the defendant.
My second point is that I am not at all satisfied by the argument that Article 6 of the Convention on Human Rights is not infringed provided a defendant can either defend himself or be represented. I am aware of the case in Germany decided by the Court of Human Rights. It is not a time to go into detail; it is not a precedent which I admire in the context of the jurisdictions in these islands.
If Parliament introduces the proposed restriction, it will be saying, "You will no longer have a choice of ways of being defended. You must accept counsel, even if you conduct your own case." That statement would reduce the defendant's "minimum rights" in Article 6, paragraph 3. Even if we are not offending against the Convention, why introduce a unique restriction in one type of case just because some trials—and in particular, one trial—are not sufficiently controlled by the trial judge? Seminars with advice as to how to conduct a trial are at least as important as seminars on sentencing, and the problem can be easily taken care of.
§ 8.29 p.m.
§ Lord Thomas of Gresford
My Lords, I am sure that the whole House will wish to congratulate the noble Baroness, Lady Byford, on introducing a highly valuable discussion. The views expressed indicate what a very difficult subject we are embarked upon.
The noble Baroness rightly pointed out that the reason for the fall in convictions in this country over the past few years has been due, first, to a lowering of the numbers of prosecutions for rape by strangers—it is very fortunate that the statistics are for once moving in the right direction—and also to the widening of rape prosecutions to marital rape and rape in equivalent relationships. I would add another significant factor for the fall in rape convictions. That is the very considerable increase in sentencing that has happened during the course of my own professional career.
Rape is a terrible trauma and it is rightly punished by a maximum sentence of life imprisonment. I am sure all your Lordships would agree that a woman has an absolute right to say no. That is her right. No one would for a moment impugn that right. However, the law is that the defendant is convicted on his own state of mind and not upon the state of mind of someone else. It is his realisation of the lack of consent and his recklessness 103 which is punished. It is not the fact that the victim—the complainant, as the noble Lord would have it—has said no without communicating that fact to the person who is the defendant.
I make no apology for saying that there is a trauma for a man who is convicted on a false complaint and who finds himself imprisoned for, today, a minimum of five years, with the destruction of his career and his family life. That has to be put into the balance. I do think that from time to time those who call for greater penalties and more restrictions and for a fence to be put around judicial discretion sometimes forget that.
I believe that the increase in the length of sentences has caused complainants to withdraw their complaints in cases where they know the person against whom the complaint has been made. If they do not do that, and if they are called as witnesses, in my experience—I speak as someone who has prosecuted, defended and acted as a judge in rape cases—they will be reluctant to press home the point. There is most certainly a reluctance on the part of the jury where the mistaken belief of the defendant is the issue that is before them. They may find it not at all difficult to decide that the complainant did not consent. It is a far more difficult thing to determine that the man who had a relationship with a woman over a period of years did not realise that her consent had been withdrawn and that he believed, despite her protestations, that this was perhaps just a brief problem within their relationship. It is at that point—I think of a recent case in which I was involved—that juries will acquit.
The issue is therefore one of intimidation. How are women intimidated from bringing complaints? It is that which the report of the working group addresses. There are a number of ways in which a complainant can be intimidated. The first is by external threats. Perhaps the most important of all recommendations made in the report is recommendation number one whereby special measures would be in place to protect witnesses from external intimidation. But there is also of course—and your Lordships have addressed this—intimidation in the court itself. A case hit the headlines some time ago in which the defendant in person cross-examined the victim. I give the strongest support to the guidelines set out in the case of Brown by the Lord Chief Justice.
When there is political pressure to restrict the independence and the discretion of the trial judge, there lies danger. On the other hand, I follow the noble Baroness, Lady Mallalieu, in what she said. She would give a right to the judge in a proper case, where it is clear that the defendant is acting abusively when he is representing himself and that in putting forward his case he has purposes other than defending himself, to order that he cease to defend himself and that a lawyer be appointed to put his case for him. That is not a halfway house. To my mind, that seems the sensible policy to follow rather than to say that no one should defend himself in the kind of situation to which the noble and learned Lord, Lord Ackner, referred, where perhaps the word from the husband to his wife might persuade her to reconsider a false complaint that she has laid. I see 104 no breach in Article 6 of the European Convention on Human Rights by the appointment of a lawyer in circumstances such as those I have suggested.
Intimidation may occur not simply through threats, either externally or within the court, but also through publicity. There is anonymity for a rape victim, but that anonymity may be breached merely by the publication of the defendant's name. Never mind about the position of the defendant, but it may actually cause publicity for the victim if the defendant's name is published. I would certainly maintain anonymity for the victim, but I would return to the position that pertained some years ago that a defendant should also be anonymous until conviction; not simply for his own protection, although that is an important feature, but also to ensure that a victim cannot be identified through a round-about route.
There is intimidation to a complainant by the way in which medical examinations have been carried out in the past. We need in this country to develop projects along the lines of the Northumbrian Reach Project, which ensures that there are specialist centres removed from police stations where fully trained medical staff can carry out the very delicate examinations that are necessary. There should be attached to those centres non-police counsellors. I go along with the views of other noble Lords who have suggested that Victim Support and other such organisations should play an important part in preventing intimidation through the examination of witnesses, medically and in court.
There can be intimidation by insensitive police treatment. It is essential that those who are involved in taking complaints—the police themselves—should be trained. That training should include investigation of why a complaint has been withdrawn by the victim. Is it because of intimidation or because the complaint was originally false? The matter should not simply stop at the point when the complainant says, "I do not want this matter to proceed". It should be investigated.
As regards appearance in court, which can be intimidating, closed circuit television technology has been used effectively in children's cases and ought to be extended to cases of rape. The screens are a less satisfactory way of dealing with the matter. In my experience screens create a very false situation within a court. The use of television is a far more acceptable way of dealing with things.
Finally, I turn to the point forcefully made by the noble Baroness, Lady Mallalieu. Delay can very often be the real problem. A person who has suffered and has all the problems to carry finds that it takes months and perhaps a year or more for her case to come to court. In that time the agonies of waiting must be very considerable. The report of the working group is an important step forward. I am sure that there is further research and further investigation to be done.
§ 8.41 p.m.
§ Baroness Anelay of St. Johns
My Lords, I, too, thank my noble friend for giving the House the opportunity to debate this matter for it means that tonight the Minister has the opportunity to tell the House how the Government intend to respond to the 105 recommendations in the report, whether they will be implemented and, if so, when. My noble friend spoke with great sensitivity about the human issues involved. Time has certainly been limited tonight despite the extension we have been given, so I shall focus only on cross-examination issues in cases of rape and indecent assault.
The working group considered that the trauma caused to a complainant being cross-examined in a rape case arose from two factors: first, that the defendant was asking the questions; secondly, the manner and nature of the questioning, whether it was by the defendant or by a barrister. Recommendation 58 states that there should be a mandatory prohibition on unrepresented defendants personally cross-examining the complainant in cases of rape and serious sexual assault. I note that the report does not say that legislation is required to implement this. I wonder whether that is correct and whether it is simply a misprint within the report. I would be most grateful if the Minister could resolve that point. The report makes clear that after each recommendation the notation of the letter "L" is put where statutory changes are intended whereas there is no "L" at the end of that recommendation. I was concerned on that point.
I realise that the report was written before the judgment was given in the case of Milton Brown on 6th May of this year. I have read that judgment in full. The Lord Chief Justice provided new guidelines for judges—that they should take a more interventionist approach and either halt questioning if it seeks to humiliate, or order the installation of a screen, in addition to controlling cross-examination. How confident is the Minister that the new guidelines do enough to protect the victims of rape and indecent assault in the interim? I can only assume that the Government believe that the Lord Chief Justice's words are inadequate because the Home Secretary's announcement about legislation came after that judgment was issued.
The report agrees with the argument which I put during the course of the Crime and Disorder Bill that Section 34A of the Criminal Justice Act 1988, as amended by the Criminal Justice Act 1991, already provides an exception to the right of a defendant to cross-examine personally in child cases. The working group confirms that it is not aware of problems with that at present and that there is no ECHR case against it.
I am most grateful to Justice for allowing me to refer to a legal opinion on the matter, which was obtained by it on 11th June from Peter Duffy QC. He concludes that the proposals in the report,are plainly compatible with the Convention and further that retention of the existing right of rape defendants to cross-examine their alleged victims in person would be open to grave criticism for failure to have proper regard to the Convention rights of victims".Mr. Duffy provides a careful review of the existing cases and he states that,enactment of the proposals would manifestly be in compliance with respect for the Convention rights of all concerned".Could the Minister confirm that the Government agree with that view?
106 The working group tackled the issue which I had not attempted to deal with within the context of the Bill: who, if anybody, should represent the defendant if he or she refuses representation? Recommendation 60 states that where an unrepresented defendant is prohibited from personal cross-examination, he or she should be granted legal aid, without means testing, to obtain legal representation for cross-examination purposes only. If the defendant refuses legal representation, then the court should have the discretion to assess whether it is necessary in the interests of justice for the defendant's case to be put and, if so, have the power to appoint a person to undertake this task.
The working group recognised that in view of a barrister's professional duty to put the case on behalf of his client, there may be difficulties for counsel in conducting cross-examination only. The report maintains that,information about the general line of defence should be available from the defence statement which is required to be produced in indictable cases under the provisions of section 5 of the Criminal Procedure and Investigations Act 1996".But Section 5 statements can be very brief; for example, "Every time she says I did it, she's a liar". The defence could have changed since the making of the Section 5 statement and it is possible that there is no Section 5 statement at all.
If a defendant only refuses representation for cross-examination the barrister would at least have had a consultation before the trial about all the particulars of the alleged offence. But what happens when the defendant refuses representation altogether? The barrister will have no information except that contained in the Section 5 statement. How do the Government plan to resolve that particular dilemma?
The working group goes on to recommend that in cases of rape and other serious sexual offences the law should be amended to set out clearly when evidence on a complainant's previous sexual history may be admitted in evidence. Several noble Lords have already made very effective reference to that procedure.
In evidence to the working group the Rape Crisis Centres quote a statement from the Northumberland police that the prospect of facing aggressive, humiliating and irrelevant questioning in court was the largest single factor in making women withdraw their complaint. If this is so, then reforming the cross-examination of rape victims in a way that retains the fairness of the trial for both the defendant and the alleged victim could provide a potent improvement in the way in which rape victims are treated in the criminal justice system.
The report pointed out that current practice might be improved upon by further guidance being issued to courts, but concluded that,given the experience of the last 20 years in operating section 2 [of the 1976 Sexual Offences (Amendment) Act] the Working Group was not convinced that this option would provide an effective solution".Do the Government agree with that assessment?
All of us throughout this country have a role to play in ensuring that the criminal justice system works as fairly and effectively as possible to protect all the 107 individuals involved—victim or innocent defendant. I believe tonight all noble Lords who have spoken have tried to play their part as best we can to raise the issues fairly. I look forward to the Minister's response.
§ 8.48 p.m.
§ The Parliamentary Under-Secretary of State, Home Office, (Lord Williams of Mostyn)
My Lords, this has been a genuinely interesting debate because no one tried to make any partisan points. The range of views that have been expressed indicate the very delicate nature of the matters we are concerned with and the fact that it is very difficult to have a solution which will deal with every possible scenario.
I think that the report is a masterly document in many ways and I am most grateful to the noble Baroness, Lady Byford, for her graceful commendation of it. However, it casts its net very wide. It deals with vulnerable or intimidated witnesses of all sorts, and it is not of course limited to trials of rape or indecent assault, although I understand entirely that because our time is limited a number of your Lordships have focused on those matters.
Some of the observations made are general and I am bound to say that I agree with the overwhelming majority of them. I can say specifically that the eagle eye of the noble Baroness, Lady Anelay of St. Johns, has correctly detected an omission by way of a misprint on Recommendation No. 58. The Government's view, which I have expressed publicly in the past, is that there is nothing in Article 6 which would forbid a court in appropriate circumstances to limit cross-examination by a defendant in person. I do not myself believe that the present statutory provision for the protection of child witnesses is in breach of our convention obligations.
The noble and learned Lord, Lord Ackner, asked particularly about consultation with the judiciary. There were four members of the judiciary, all of whom were nominated by the noble and learned Lord the Lord Chief Justice, who attended special conferences held by the working group, so that the views of the judiciary were undoubtedly taken into account. I will refer to that point again in a moment, if I may.
It seems to us that it is a basic test of a decent society that everyone should have fair treatment from the criminal justice system. That includes victims, alleged victims, witnesses—who need not always be victims but may be grossly traumatised in a way that we who have not been witnesses may find difficult to understand—and of course defendants. So there is that balance to be maintained. If I may say so respectfully, I think that the Lord Chief Justice in his recent pronouncements was very alert to the balance that has to be kept. I hope I may say without presumption that it is very important that someone in his high office does issue reflective views which have to be put into effect across the wide parameters of the criminal justice system.
This group was set up very soon after the last election by my right honourable friend the Secretary of State Mr. Jack Straw. I think it has done a very considerable public service and has produced a very considerable 108 piece of work. Of the 78 recommendations, 26, on my tally, will need legislation. Some of the recommendations are not entirely for the Government and it is quite right that they should not be. Some of them will depend on local agencies, local priorities and local responses to particular conditions. That is only right. I do not believe that there is a raft of 78 recommendations which necessarily ought to be at the diktat of central government.
We have said that we give a broad welcome to these proposals, and that remains our view. This was quite an important working group with representations from all interested government departments. The CPS was represented, together with ACPO, the Local Government Association and Victim Support. As one can see from a reading of the report, it tried to look at all stages of the criminal justice system, from investigation through to trial. That is extremely important, because so often in the past one has had a snapshot view of perhaps a trial, perhaps a cross-examination within a trial, rather than bearing in mind—here I agree entirely with what noble Lords have said—that one needs to look at the alleged victim's interests at the early stages from the time of the alleged offence.
I also pay tribute to the careful piece of work submitted by the Criminal Bar Association, which rightly recognised that the protections for witnesses, defendants and victims or alleged victims need to be very carefully balanced indeed. If I cast my net a little wider than simply rape and sexual assault, intimidation of witnesses generally and of alleged victims is a growing concern. There have been quite a lot of notorious cases recently where people have been acquitted on directed acquittals in very serious cases indeed, including murder, because the only evidence available comes from a witness who has been so intimidated that he or she would rather suffer what is of course likely to be a fairly moderate term of imprisonment—because that has been the history of it—rather than give evidence and thereafter live in fear.
The report makes useful points about individuals and communities which may live in fear, terrorised by criminals who are vicious and organised. There is a range of useful practical measures which ought, I think, to form part of a wider debate which we cannot have this evening because of the constraints of time. One needs to remember that witnesses may be vulnerable for all sorts of different reasons. They may just be afraid of speaking in public; they are certainly troubled by the uncertainty of trial dates; they are deeply concerned about delays; and it seems to us that it is a matter of proper management that those who deal with the investigation, prosecution and listing of cases ought to bear in mind that every single participant needs so far as possible to have a degree of certainty about what the nature of the process is and what the timetable is likely to be, with the increasing use of effective pre-trial hearings, when something useful and definitive could be achieved.
The good practice video which has been mentioned by two of your Lordships was, if I may say so, a very good piece of work which was produced by the NSPCC. I need not declare my interest, because my noble friend 109 Lord Borrie has done that. It was an excellent piece of work, the best I had seen at that stage, because it demonstrated how courts actually work. Certainly I can say from my own conversations that the Bar Council are well aware of its value and have undertaken to give serious consideration as to whether it ought to be a professional obligation on any member of the Bar—I think myself that it ought to be considered by the Law Society also—to have at least studied the video and possibly to have had some training in this very difficult field. After all, the CPS instructs advocates properly trained to prosecute. Should that not be a sanction on those who wish to defend in these cases? It is very important, as has been said, that the Judicial Studies Board should be fully supported in the training which is given—this point was made by the noble and learned Lord, Lord Lowry—about the conduct of trials. It has always struck me particularly—I know this is in the mind of the Home Secretary—that to try a case under the Children Act, a judge has to be nominated, designated and trained, and that does not always obtain, unfortunately, in the allocation of work in these sensitive areas of sexual assault. That is really a question of simple training and management of the judiciary and it does not seem to me that it requires legislation. What it requires is clear signalling and a clear acceptance of the message transmitted.
My noble friend Lord Borrie referred to the work being done at Penge. That is an admirable house, which I went to quite a while ago now with Sir Stephen Brown, the President of the Family Division, who has subsequently given every support to the causes which my noble friend Lord Borrie identified. It is very important that children should know what is going to happen to them. If a child is a complainant and is told that his case may come on in nine months' time, nine months is a lifetime to a child, as well as to your 110 Lordships and to me. It is quite wrong, I think, if there is a machinery for allowing video evidence to be put into evidence, that a firm, final and definitive conclusion is not arrived at in the overwhelming majority of cases and stuck to, so that a child is not anxiously asking its parents, its helpers or friends on a Friday, "Am I going to give evidence on Monday?" and the answer is, "I am not quite certain yet".
These are monstrous abuses imposed by a system which is intended to remedy abuse. What my noble friend Lord Borrie has said about delay is absolutely accepted by the Home Secretary and by everyone in the Home Office who has put his mind to this. We can use CCTV in the way that has been mentioned by the noble Lord, Lord Thomas of Gresford. I take the point made by the noble Baroness, Lady Mallalieu, that some immediacy may be lost. That is something that has to be put in the balance.
This work has pressed on well. It has taken a year or so and I think that it has been time well spent because it will be the bible and the testament for a good deal of further reform. We do not want time to be wasted. We have therefore said that we shall consult until 31st August on the detail of all the proposals. I can assure your Lordships that every single view put forward tonight will be carefully pondered and taken into account before we come to a final decision.
As I said earlier, 26 of the recommendations require legislation and legislative time. I gather from the temper of your Lordships' House this evening that, if legislative time is required, we shall have co-operative responses from every part of the House. The other recommendations require reflection, imagination, patience and the devotion of resource but, most of all, the devotion of time, thought and energy to the purposes which I believe we all share.
§ House adjourned at nine o'clock.