Youth Justice and Criminal Evidence Bill [H.L.]

HL Deb 01 February 1999 vol 596 cc1309-58

4.20 p.m.

Lord Williams of Mostyn

My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved, That the House do now again resolve itself into Committee.—(Lord Williams of Mostyn.)

On Question, Motion agreed to.

House in Committee accordingly.

[The DEPUTY CHAIRMAN OF COMMITTEES (The Countess of Mar) in the Chair.]

Schedule 1 [Youth offender panels: further court proceedings]:

[Amendment No. 59 had been withdrawn from the Marshalled List.]

Viscount Colville of Culross moved Amendment No. 59A:

Page 45, line 21, leave out from ("court") to end of line 27 and insert ("that the circumstances set out in the report by the panel under paragraph 2 of this Schedule accord with the provisions for a referral hack in section 7, 10 or 11 of this Act,").

The noble Viscount said: I am glad that the Committee stage was adjourned when it was last week in order for me to transform a somewhat cryptic note to the noble Lord, Lord Williams, into an amendment for his consideration. I am concerned with the formulation in paragraph 5 of the first schedule and the situation that will arise. There will have been a referral to a youth panel of an offender who falls into the right kind of categories which are set out in the Bill. Then something will have gone wrong and the question will arise as to whether that offender should be referred back to the youth court in order that the matter can be reconsidered.

The modern analogy for what now appears in Paragraph 5 is the provision in Schedule 2 to the Criminal Justice Act 1991 for breaches of community sentences such as probation orders and community service orders. In those circumstances the court, whether it be a magistrates' court or the Crown Court, has to be satisfied about certain matters, but they are nothing like as specific as they are here. It then can have the power to deal with the matter afresh, as if it had not previously made a community order, but taking into account of course the extent to which any such order has been complied with.

In this Bill the matter has been spelt out in some considerable detail. If the panel wishes to refer an offender back, the court has to go through an elaborate set of considerations. It has to look upon the finding of fact by the panel and decide whether the panel was entitled to make that finding or, if it was a matter of discretion, whether the panel reasonably exercised that discretion.

I suggest to the Committee that the relationship between a youth court and the local youth offender team, who I am sure will be a part of the panel system, will be one of mutual trust. Certainly in my experience, when dealing with my own probation service, one does not expect the probation service to bring back to court a breach of a community sentence unless there is good reason for it. And although there is technically a reason, unless there is a requirement that the court should be satisfied, there is no spelling out of the details as to what the court has to be satisfied about. I therefore wonder why it has to be spelt out in such detail in Paragraph 5.

My amendment probably does not take account of all the drafting niceties because no amendment drafted by a Back Bencher ever does, but I draw the noble Lord's attention to the circumstance of some of these referrals back, particularly those in Clause 11(4), and particularly where, in effect, the system—the contract—has broken down and it is being taken back to the court so that it can be looked at afresh.

Why, in those circumstances, should a court question the exercise of discretion by the panel? Perhaps I may ask the noble Lord the following question. Supposing it goes into the details set out in the text as it now appears, and comes to the conclusion that the finding of fact is not justifiable or that the exercise of discretion was not reasonably carried out, what then is to occur? There will have been a referral back; the youth panel will have decided that the matter will not proceed; the contract will not work; and the court to whom it is referred back will really be put in an impossible situation. I suggest to the Committee that the way in which it is put at the moment is too elaborate and it could be left to a much more simple formula which will reflect the trust that will arise between the court and the youth offender team. I beg to move.

Lord Cope of Berkeley

I should like to give rather diffident support to the approach adopted by the noble Viscount. There is a small problem which occurred to me. It is a slightly related matter, and I raise it with diffidence, but it seems to arise out of these matters. If an offender is referred back, either under the wording in the Bill at present or under the wording proposed, and the court decides that it was properly referred back, then the order is revoked in any case and the court can then proceed if it wishes, and thinks it right, to sentence the offender further.

However, if it is referred back and the court decides, for whatever reason, that it was not properly referred back by the panel and the time of the contract has expired by that time then, as I understand it, the order is automatically discharged rather than revoked and no further penalty can presumably be imposed in those circumstances. That seems to be an awkwardness which arises from the wording of this particular part of the schedule.

Lord Williams of Mostyn

I am most grateful, as always, for the courtesy with which the noble Viscount approaches these matters, in writing to me as he said. I sympathise with his view that the procedures for the court, the panel and the young offender should be set out as simply as possible. Also, there must be no question that the actions of the panel are put on trial in any sense at a breach hearing. However, we have to bear in mind that the court does have a role as a supervisory jurisdiction and in the circumstances it is of the greatest importance.

There are a few circumstances which may prompt a panel to refer a young offender back to the court. Clause 7(2), as your Lordships will know, gives the panel the discretion to refer the young offender back to court if he or she fails to attend a panel meeting. Under Clause 10(2) or (3) the panel shall refer the young offender back to court if there appears to be no prospect of agreeing a contract or where a contract appears to have been agreed but the young offender refuses to sign it.

Under Clause 11(5) again the panel may refer a young offender back to court following a breach of the terms of the contract. Under Clause 11(8) or (10) the panel may refer the young offender back to court if he or she fails to sign a variation of the contract, or indicates that there is a change of circumstances such as to warrant a revocation of the order. Under Clause 12(4)—and I think the noble Viscount is right, because his amendment does not deal with this but it is a drafting point, as he says—the court shall refer the offender back to court if at the end of a contract period he or she has failed to comply.

In some of these circumstances, such as failure to agree a contract from the outset, the youth offender panel has a positive duty to refer the young offender back to court. The young offender is unable or unwilling to comply with the terms of the referral order, and the court must be given the opportunity to consider an alternative sentence. The court will be able to do so as soon as it is satisfied that the circumstances did indeed take place.

In other circumstances, of course, the panel has a choice. Perhaps the most obvious example is where a breach of the terms of the contract has taken place. In those circumstances the panel may refer the young offender back to court and that is the element of discretion to which I referred earlier. This must be right, because further inquiry may be needed and the breach may be minor. Alternatively, it may have happened only once and although it may be a slip on the part of the young offender there is every belief that he or she will comply in the future. It may further have been a breach beyond the control of the young offender brought about by ill health or the actions of others, and so those circumstances need to be investigated by the panel before a decision on whether to bring breach proceedings is reached.

In such circumstances, it will not be enough for the court simply to make a finding of fact that a breach has taken place. The young offender may well agree that he failed to comply on a certain occasion but may not agree that his or her actions were sufficient to discredit the contract entirely. It is important that there should be an opportunity for the court to hear arguments on this point from the young offender, or his or her legal representative. This is not a matter of putting the panel on trial but of ensuring that the young offender has a chance to have his say.

For those reasons it is important that the court is asked to consider not only the facts—that is to say, whether or not a breach occurred—but also whether the response to that breach was reasonable and proportionate in the particular circumstances of the case. The noble Lord, Lord Cope, asked a specific question as to what would happen if the period had expired. The answer is in paragraph 7(3) where we see that it will be discharged.

I turn now to the question of the noble Viscount: that, is, what would happen if the court concluded that there was no breach. If the court concludes that there is no breach, the young offender remains subject to the referral order. The court may suggest some variation to the order to enable the offender more easily to comply. I appreciate that there is a good deal of detail set out here. In the context of the new method of disposal, we feel that that is right. It gives discretion and mandatory duty to the panel. I hope that with that explanation the noble Viscount will feel sufficiently content not to press his amendment.

4.30 p.m.

Viscount Colville of Culross

I am grateful to the Minister for that explanation. I suspect that in practice it will not matter much, but I make two points which the noble Lord and his advisers may wish to consider.

First, the magistrates do not sit only in relation to these sorts of proceedings; they deal with a whole range of matters, including ordinary community sentences. They will wonder why Parliament set out different tests and what it is they are supposed to do that is different from the other circumstances when a breach is referred back to them. All I suggest to the Minister is that there will be confusion as to the role they have to play.

Secondly, if paragraph (5) has to be explored in the detail which will be necessary to establish to the satisfaction of the court that the facts or the discretion have been rightly dealt with, then the youth court will have to go into quite a lot of delicate negotiations and arrangements between the young offender and the people who are trying to set up a positive regime to look after him. Those are not usually susceptible to a positive solution by public discussion in a court. It is unlikely that progress will be made in that forum and it is much better, on the whole, for the matter to be dealt with by the youth offending team and only in extremis, at the end, if a breach is thought to be impossible to resolve in any other way, should it be taken back to the court.

The explanation of the noble Lord is perfectly reasonable in terms of the legal drafting, but when it comes to the reality of what is going to happen as between a court, a very young offender and the youth offending team which is supposed to be looking after him, the wording will not produce anything different from the straightforward and simple situation suggested in my amendment.

Lord Cope of Berkeley

I am sorry for interrupting the noble Viscount and I am grateful to the Minister for referring me to paragraph 7(3) of Schedule 1. The point I was trying to make—to which I do not need an immediate reply—is that under paragraph 7(3) an order is discharged; that is to say, nothing further can happen to the offender. I understand that that is the difference between it being discharged and being revoked. It seems to me that in some circumstances the reason for the offender being referred back to the court will be because, although the time of the proposed contract has elapsed, the offender has not fulfilled its terms. In those circumstances, if the court is doubtful about the panel's decision the offender will automatically "get off" and that may not be right.

Perhaps I have misunderstood the situation. I do not wish to press the Minister at this point to respond to my comments.

Lord Williams of Mostyn

Before the noble Viscount decides whether or not he intends to withdraw his amendment, perhaps I can respond to both of those points. I am grateful to the noble Viscount. As I indicated on earlier occasions when he was most helpful in raising these questions, I shall give the matter further thought with officials. The noble Viscount may well be right as to the practical outcome. And, of course, I shall look again at the point made by the noble Lord, Lord Cope, and write to him, undoubtedly before we meet again in a week's time.

Viscount Colville of Culross

The noble Lord, Lord Williams, is always most accommodating. What I want to achieve as a result of this discussion is something that will be easy and fits in with the sort of situation to which the courts and youth offending teams will have to apply their minds. I am happy to leave it to the noble Lord and his advisers to look at the matter again. There is nothing wrong with it; it is just too elaborate. If he says he will look at it again, I am happy to beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 60 had been withdrawn from the Marshalled List.]

Lord Dholakia moved Amendment No. 61:

Page 45, line 39, after ("order") insert (", other than by imposing a custodial sentence on him").

The noble Lord said: This amendment prohibits the youth court from passing custodial sentences on young offenders who fail to complete a contract they have made with the youth referral panel. The youth court will retain the ability to pass any other form of sentence on such young offenders, including fines, reparation orders, supervision orders, attendance centre orders, action plan orders and community service orders.

The young people concerned will be juveniles who have appeared in court for the first time and plead guilty. Part I of the Bill requires the youth court to refer the majority of such young people to a youth referral panel. The youth panel and the young offenders will have to draw up a contract which will involve the young person in appropriate activities such as reparation of the victim or the community and in work designed to tackle the cause of offending. So far there is no dispute. If the young person does not comply with the contract, he or she will be returned to court to be sentenced for the original offence. If they complete the contract successfully, then Schedule 3, paragraph 5, of the Bill provides for the offence to be spent for the purpose of the Rehabilitation of Offenders Act 1974.

This is a fairly imaginative development which will have a number of advantages over the current youth court procedures. The panel will be better able to involve a young person and the parents fully in discussing the offence, its impact on the victims and the steps which should be taken to make amends and ensure that there is no repetition. In the more formal proceedings of the youth court, young offenders and their parents often fail to understand fully what is happening and the legal procedures can hinder the process of getting young people and parents to speak and contribute fully to the discussion.

Furthermore, in a panel setting the drawing up of a contract can concentrate on the best course of action to prevent reoffending, including attention to developing the welfare needs of the young person and his or her family. I have in mind examples such as family counselling, educational measures and help with drug abuse. While courts can use welfare-related measures—for example, a supervision order—they can do so only if the offence is regarded as sufficiently serious to warrant such a sentence. In the result, many young people appearing in the court for the first time miss out on the welfare intervention which could help steer them away from further trouble.

It is important to ensure that disproportionate sanctions are not imposed for failing to keep to a contract which has been agreed in a non-court setting. The procedure of the panel will not contain all the safeguards of due process which apply in a court setting and the contract will not be subject to the full limits of proportionality which apply in court sentences.

It does not seem right that a failure to abide by a contract, agreed in a non-court setting, should be subject to the full range of youth court penalties, including custody. That is especially so as the referring court must have decided that the original offence did not merit custody before making the referral to the panel.

It is therefore submitted that it would be disproportionate to allow a court to impose custody for failure to abide by a contract agreed in a non-judicial setting, following a first court appearance for an offence which was judged not to deserve custody. I beg to move.

Lord Cope of Berkeley

With the greatest respect to the noble Lord, Lord Dholakia, I do not agree with Amendment No. 61. When the offender first appears in court, the magistrates have at that stage the option of sending him or her to prison, if they think that it is a very serious offence. There may be marginal cases about which the magistrates need to deliberate carefully on whether to send a defendant to prison or allow him or her to appear before a panel. If the magistrates come down on the side of sending him or her to a panel, but the panel does not work in terms of agreeing a contract or the contract is not completed, the offender will return to the court. The noble Lord set out many of the options available, but it seems to me that the court should have available to it the option that it was considering when it first dealt with the offender. The Government's wording is correct in this instance.

Amendment No. 62, which is grouped with Amendment No. 61, concerns what happens if the panel system is not successful in a particular case and the youth is returned to court. As the Bill stands, the court seems to be intended to approach the matter as if the youth offender panel had never existed and nothing had happened in that respect. In some cases, that will be quite right. However, there may also be cases where the offender, having been sent to the panel—in some cases compulsorily as far as the court is concerned or by discretion—makes life so difficult for the panel that it is impossible to agree to a contract; or where the offender lightly agrees a contract and then makes no effort to pursue it.

Young people in such circumstances can be extremely manipulative of those trying to help them as well as of those trying to punish them. They can, and sometimes do, string a panel along. In those circumstances, it seems appropriate that the court should have the power to impose an additional sentence on a young offender for wasting the time of the panel—and, indirectly, of the court—by his or her behaviour. I expect that that power would be used only in blatant cases. If there is no such power, it is likely that a panel's time will be wasted by young offenders who think of it as a soft option. Once that starts, and it is realised that there is no penalty, I believe that that practice will grow. I believe that the suggestion in Amendment No. 62 is worthy of the Committee's consideration.

4.45 p.m.

Lord Renton

I should like to add to what my noble friend Lord Cope has said. The main point is that Amendment No. 61 would fetter the discretion of the court; that is, the discretion that a court would normally have with regard to a serious offence. We must also bear in mind that only offenders who are under 18 years of age are made subject to a referral order. As they pass the age of 18, one may expect better behaviour as they mature. If young offenders have failed to co-operate with the body to which the referral order is made (instead of having been sentenced by the court for quite a serious offence), I do not think that they should be able to get away with that, as the amendment would allow.

Baroness Carnegy of Lour

If the Minister disagrees with Amendment No. 61, as I expect will be the case, will he tell us whether it is expected that what the court does will depend partly on the original offence, for which the offender was sent to the panel, and on the nature of the breaking of the contract, or the refusal to sign it? Are those two matters to be taken into account? I imagine that they will be, but it would be interesting to have that confirmed.

The Earl of Mar and Kellie

I support my noble friend Lord Dholakia in his Amendment No. 61. It seems reasonable to me that a child who is referred to a court by a youth offender panel should be resentenced, but without the possibility of a custodial resentence. The Minister has already said that there will be no punishment for being referred back to the court. That is unlike the response for a breach of a probation order or some other community sentence. In those circumstances, the offender is punished for the breach as well as being resentenced for the original offence.

As regards the position of no punishment for being referred back, the youth court will have had the opportunity to impose a custodial sentence when the child first appeared before it and pleaded guilty. The youth court will have decided not to impose a custodial sentence because the offence was not sufficiently serious. Therefore, I believe that the decision not to impose a custodial sentence should be carried forward to referral-back proceedings.

The merits of the limitation of the youth court's powers of resentencing will confirm the principles of restorative and rehabilitative justice and the determination not to write off a young offender who will, after all, have pleaded guilty to a first offence. Experience of working on an intensive probation project suggests to me that such schemes—I include the youth offender panels and their contracts—may require a level of maturity not always present in very young offenders. The youth court must recognise that and find another community-based sentence.

Viscount Brentford

I am not very happy about Amendment No. 61 for the reasons put forward by my noble friend Lord Renton. It reduces the options open to the court, which I should like to see remain as flexible as possible.

I am intrigued by Amendment No. 62 which was tabled by my noble friend Lord Cope. I can see the frustration in the behaviour of certain young people in breaching the terms of the referral contract. Does the Minister think that being able to add to the punishment because of such a breach will change the atmosphere surrounding the contract so that it has more of a legal basis—indeed, it does have a legal basis—or rather, more of a court structure about it, which is exactly what we are trying to avoid? I like the idea, but I wonder whether it runs contrary to the type of atmosphere that this movement is trying to bring about? I shall be interested to hear the Minister's response in that respect.

Viscount Bledisloe

Amendment No. 61 appears to me to make a most amazing proposition. We have a situation where a serious offence has been committed and by eloquent pleading of how extremely sorry the young offender is, how he intends to live a wonderful life thereafter, and how deeply sorry he is for the pain that he has inflicted upon the victim, the court says to him: "By the skin of your teeth, you have just escaped a custodial sentence". He then goes to the panel where, in extreme bloody-mindedness, he entirely refuses to do anything that is suggested and he is referred back to the court. Thereafter, we are told that the court who said, "You have escaped by the skin of your teeth, because you are so penitent", will not be allowed to send him to prison on the grounds that he is not really repentant at all. That seems to me to be extraordinary.

Lord Williams of Mostyn

It is not so extraordinary if one actually considers what the noble Viscount, Lord Brentford, correctly identified as a new beginning in dealing with first offenders—and the noble Earl, Lord Mar and Kellie, also pointed this out—who have pleaded guilty and who are under the age of 18.

We are trying to set out new measures for dealing with offenders in that particularly limited category. At present, the Bill allows the court to sentence the young offender for the original offence using the full range of sentencing options which would have been available to it if it were not for the mandatory referral. In doing so, the court must take into account the extent to which the offender had already complied with the terms of the contract and the reason given for the breach. As Members of the Committee have rightly observed, the Bill makes no provision for the circumstances of the breach or the extent of compliance to be used as aggravating factors; it is not intended that they should be.

Perhaps I may set out our thinking and try to reconcile the different themes that have been expressed in noble Lords' observations. Our thinking is that this is a completely new way of dealing with young offenders whose limited category I have already described. I support the principle and the thinking behind the amendment of the noble Lord, Lord Dholakia, but I do not believe that the provision is necessary.

I turn now to the important question of this being a fettering of discretion, as argued by the noble Lord, Lord Renton. It is not. The sentencing discretion has already been exercised. All offences made the subject of a referral order will already have been the subject of the court's discretion. I say that because, in its discretion, it comes to the conclusion that the offence in question—the index offence, if I may call it so—does not warrant a custodial sentence. The circumstances of the breach are not to be used as aggravating factors and, therefore, the situation about which the noble Lord was concerned should not be capable of arising. I hope, therefore, that I have set the noble Lord's mind at rest. I believe that our approach to these orders is exactly the same.

In recognising that this is a new form of disposal, the noble Lord, Lord Cope, has taken a different approach by seeking to penalise the young offender further in the light of time wasted by the panel. We do not wish there to be a sanction for failing to comply with a referral order in the sense of added days' custody, or whatever the noble Lord has in mind. The young offender is bound to realise the consequence of non-compliance because he or she will be called back to court for a new sentence to be passed. It is not to be overlooked. I recognise, of course, that this will not be foremost in the minds of those who are under 18, but the time taken for conviction to be spent under the Rehabilitation of Offenders Act will be more than if they complied with the contract because, as we established on an earlier occasion, the conviction is spent as soon as the contract is successfully signed off.

I turn now to the other questions raised, one of which came from the noble Baroness, Lady Carnegy of Lour, and related to whether or not the court, on referral back to it, would take into account the original offence when dealing with the offender. The answer is to be found in paragraph 5 of Schedule 1 which says that the court, may deal with him in any manner in which … he could have been dealt with for that offence". So that deals with the circumstances of the original offence. I believe that I dealt with the noble Baroness's question about the nature of the breach: it cannot be taken as an aggravation.

I believe that I also dealt with the spirit of the points raised by the noble Earl, Lord Mar and Kellie. Again, I believe that we are at one. I simply reiterate the thinking expressed by the noble Viscount, Lord Brentford, that this is a new remedy and a new approach. It is, I believe, a breaking of the mould in many ways as regards the way we have dealt with this particular group of people. I stress again the fact that this is a very particular group. They are first-time offenders who have pleaded guilty and who are under 18 years of age. It is notoriously well known that, if we stop reoffending by that group, we will have made a very important start on stopping the endless recidivism which is so dismal and such a feature of our criminal justice system for young people. I hope that I have explained the Government's thinking on the matter. This is intended to be new. What happened in the past has not been universally successful.

Lord Renton

Before the noble Lord, Lord Dholakia, replies, perhaps I may put this proposition to the Minister. Although the offence which the youthful offender committed was very serious, let us suppose that the court decided not to use its power but to make a referral order instead. Let us further suppose that, as has been said, there was a complete lack of co-operation on the part of the youthful offender. In those circumstances, are we to be told that the court is not allowed to have any second thoughts on the matter? Is it bound by its original lenient offer to the young offender, which he has abused?

Viscount Bledisloe

Before the Minister answers, perhaps I may press the point that I made which is slightly stronger. If the young offender's subsequent behaviour reveals in effect that he lied to the court or misled it in saying that he was penitent and that, therefore, he only avoided a custodial sentence by so doing, it seems extraordinary that the court has to go on acting in the way that it would only have done on the basis of the lies that the young offender told the first time round.

Lord Williams of Mostyn

I return to my original proposition: we are dealing with a very limited group of people. The noble Viscount used words like, "Lied in the first place", but these are people who have committed crimes and pleaded guilty. They are first-time offenders. If the court was originally over-lenient, in many ways that is perhaps a reproach on the original court's sentencing.

I am coming back to the point of principle. It is not a fetter on the discretion of the court because it exercised its discretion in the first place. If things do not work, it can use the armoury of weapons that it had in the first place, but may not impose a custodial sentence. The reason is that it made its inquiries and came to the conclusion that a custodial sentence was not appropriate for that offender. It is possible that the referral order will in effect be breached by the commission of further offences. If further offences are committed, there is no reason at all why the court should not consider re-sentencing in that context. Indeed, it would be obligatory for the court.

As I said, we believe that this is a new beginning. We need to wrench our sentencing minds away from a regime which did not work well in the past in the context of the very limited description attached to these offenders. I am not saying that they will be limited in number, but the description attached to them at present is quite limited. I believe that we have got it right. We must see whether or not we can get a productive, co-operative referral scheme working which is far more imaginative, far more reflective and far more thoughtful about the needs of young people and the way to deal with them than anything we have had in the past.

5 p.m.

Viscount Colville of Culross

The noble Lord, Lord Williams, has said something which concerns me greatly. I refer to paragraph 5(5) of Schedule 1. Assuming that Section 1 had not applied, on the face of the schedule as it stands I can see no fetter on the powers of the magistrates' court to use youth custody if that is the proper thing to do. The noble Lord has suggested that having made up its mind it would not do so in the first place, it then cannot do that if there is a referral back to it. That appears to me to ignore the words in brackets in paragraph 5(5)(a) whereby the court can deal with the person concerned as if Section 1 was not in force. Therefore it seems to me that the full range of powers is open to the magistrates. If their approach of submitting the young offender to the panel has proved not to work, they may well have to commit him to the Crown Court for sentence. Is that not right?

Lord Williams of Mostyn

I repeat what I said earlier; namely, it is not intended that the circumstances of the breach should be not an aggravating consequence. The noble Viscount is right to say that there is no fetter. It is theoretically just possible in a limited number of cases that the balance may be tipped in favour of custody on resentence. However, I return to the point that the original sentencing decision has been made with knowledge of the facts and the appropriate reports. The court has come to the conclusion at the time of first sentence that it will not sentence this young person to custody; that is, a first time offender who has pleaded guilty. I shall consider these points carefully but I stress that the intention of the Government is that if a court has come to a conclusion that custody is not appropriate for a particular young person, it would be extremely rare—although theoretically it is just possible—that custody might then be imposed.

Lord Renton

I apologise for intervening yet again but in the light of what the noble Lord has said, what effect does he maintain is to be derived from the words in brackets on line 37, (assuming section 1 had not applied)"?

Lord Williams of Mostyn

Section 1 applies in the distinct circumstances set out. The offence or any associated offence is one for which the sentence is fixed by law. The court is not proposing to impose a custodial sentence and was not proposing an absolute discharge. That is the cross-reference to Section 1.

Baroness Carnegy of Lour

I do not wish to prolong this discussion much longer. However, the Minister should think carefully about this matter. Much as one hopes that the whole matter will be positive for the young person involved, when one thinks of the young people who get into this position there is no question that one of the main questions they will bear in mind is what might happen if they do not do what is stated in the contract. That is the critical point. They will need to know whether there is a possibility of a custodial sentence being imposed. The phrase in their minds will not be the one that the Minister mentioned at the Dispatch Box a moment ago; namely, that a custodial sentence is theoretically possible. I do not think that is of much use to a 14 year-old who has been extremely naughty.

Lord Williams of Mostyn

I believe that the points that have been made are perfectly reasonable ones by way of probing and inquiry. I repeat what I said to the noble Viscount earlier. I shall give some thought as to whether the true answer is to reconsider the approach proposed by the noble Lord, Lord Dholakia, or whether one needs to rely on specific and firm guidance. I take the noble Baroness's point that what is to happen after sin has been committed in this world is a useful consequence to be considered.

Lord Cope of Berkeley

I do not wish to delay the Committee further. However, when the Minister reconsiders this matter I hope he will bear in mind that I also want the new system to work. I believe that it stands a good chance of working in a large number of cases. However, I think it will be more likely to work if there is a potential sanction for wasting the panel's time than if there is no sanction at all for so doing. Such a sanction will make the system more likely to work as we all wish.

Lord Dholakia

I am grateful to the Minister for his explanation. I believe that too much is made of the fact that the measure reduces the courts' sentencing options. I have sat as a magistrate for about 17 years and for some of that time in the youth court. As the Minister quite rightly pointed out, the primary aim is to consider the welfare needs of the youngsters who appear before the court. My amendment has precisely that aim. I accept that we are now discussing a new way of dealing with young offenders. I shall monitor how the courts deal with the provision. That will give us an opportunity to address this issue in future. Overall my analysis and the research evidence clearly indicate that although magistrates have custodial powers at the present time, on average they do not impose a sentence for longer than 2.3 months. Therefore I believed it was necessary to introduce this provision in this part of the Bill. However, as I said, I am grateful for the Minister's explanation. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 62 not moved.]

Lord Williams of Mostyn moved Amendment No. 63:

Page 47, line 36, leave out ("and (4) do not affect the operation of paragraph 5") and insert ("to (5) do not affect the exercise of any power to deal with the offender conferred by paragraph 5 or 14").

The noble Lord said: The amendments in this group seek to clarify the position regarding the availability of parenting orders and bindovers when young offenders are referred back to court having breached the terms of a contract and it is decided to exercise the power of re-sentence. Our intention is that where the parent of the child is responsible for the breach, the court should have the option of issuing a parenting order and a bindover should also be available in these circumstances. I am grateful to the noble Lord, Lord Cope, as I believe he has raised this question on an earlier occasion. I accept readily that the Bill as currently drafted is not sufficiently explicit as regards the availability of these disposals. Therefore I propose amendments to Clause 4 and Schedule 1 which make it plain that the prohibition on the use of these disposals when making a referral order does not affect the ability to use them when the young person is being dealt with by the court. I believe they are entirely in harmony with the amendment tabled by the noble Lord, Lord Cope. I repeat that I am grateful to the noble Lord. I beg to move.

Lord Cope of Berkeley

I am grateful to the Minister for taking that point on board.

On Question, amendment agreed to.

Schedule 1, as amended, agreed to.

Clause 14 [Functions of youth offending teams]:

[Amendment No. 64 not moved.]

[Amendment No. 65 had been withdrawn from the Marshalled List.]

Clause 14 agreed to.

Lord Dholakia had given notice of his intention to move Amendment No. 66: After Clause 14, insert the following new clause—

ETHNIC MONITORING OF YOUTH OFFENDER PANELS

(" . The Secretary of State shall make arrangements for the ethnic monitoring of—

1. (a) persons referred to youth offender panels;
2. (b) the decisions of such panels, including decisions to refer offenders back to a court; and
3. (c) decisions made by courts in respect of offenders referred back to them by youth offender panels.").

The noble Lord said: This matter has already been debated. Therefore I shall not move the amendment.

[Amendment No. 66 not moved.]

Clause 15 [Interpretation of Part I]:

[Amendment No. 67 had been withdrawn from the Marshalled List.]

Clause 15 agreed to.

Clause 16 [Witnesses eligible for assistance on grounds of age or incapacity]:

Lord Dholakia moved Amendment No. 68:

Page 12, line 27, leave out ("17") and insert ("18").

The noble Lord said: The purpose of the amendment is simply to probe as to precisely why the cut-off age is 17 rather than 18 when the provisions of the Children Act refer to the age factor as 18. Will the Minister explain that aspect of the provision? I beg to move.

Lord Cope of Berkeley

The question put by the noble Lord, Lord Dholakia, became more interesting to me when I examined the equivalent legislation for Scotland. The Criminal Procedure (Scotland) Act 1995 also provides for the protection of vulnerable witnesses. The age chosen in that Act is 16, not 17. That makes it all the more interesting that 17 has been chosen for this part of the Bill as opposed to 18 in the earlier part.

Lord Rix

I support these amendments. The Children Act 1989, the over-arching piece of legislation concerning the protection of children, specifies the age of 18 for the upper limit of childhood. As the guidance to the Children Act states that, "Children with disabilities are children first", that principle should apply to 18 year-olds with learning disabilities in this legislation too.

Lord Swinfen

I have my name to one of the amendments in this group. I support the amendment moved by the noble Lord, Lord Dholakia. One should of course protect children, no matter what age is defined as the age of maturity. As I understand it, 17-year-olds are still "children", and therefore should be treated as such under this Bill as they are under the Children Act.

I also find it odd that in the second part of this Bill the age is suddenly reduced to 17; whereas the Long Title of the Bill refers to "offenders under 18". Why is there this sudden change? It does not make sense.

Lord Williams of Mostyn

The age limit up to which child witnesses are eligible for assistance from special measures by virtue of their youth is based on the earlier child evidence provisions under the Criminal Justice Act 1991. Under that Act, certain measures are available for children up to the age of 17 in sexual offence cases, and up to 14 in cases involving violence.

For the purposes of this Bill, we considered that children under the age of 17 might need the special protection measures in the Bill whatever the alleged offence, simply on the grounds of their youth, and that it would be right to make them eligible for help on that basis and that basis alone.

I accept what has been said or implied. All age limits are to some extent arbitrary. A child can buy cigarettes at 16, drive at 17 but not buy alcohol until he or she is 18. A girl may be criminally responsible at 10, cannot consent to sexual intercourse until 16, but is not adult for the purposes of adult prison until she is 17. So there are varying age limits and, as the noble Lord has indicated, they vary within different jurisdictions in the United Kingdom.

The noble Lord, Lord Rix, is right. The Children Act 1989 set the age limit for a child at 18. But that age limit was for the purposes of that Act. It has not led to a general re-framing of other legislation.

That does not mean—this is an important point—that a 17 year-old witness cannot have access to special measures. Under Clause 16(1)(b) the Bill allows 17 year-olds to claim eligibility for special measures on the grounds of intimidation, disability or disorder, or the nature or circumstances of the offence, which might otherwise reduce the quality of the evidence that they have to give. So it is not a matter of a non-safeguard for those aged 17-plus.

If a young person has given evidence in chief, or has been cross-examined by way of a video recorded interview, that video recording will continue to be admissible in court even if the young person has passed the age limit in the meantime. And if the young person has the critical birthday in the middle of giving evidence, any special measures granted previously on account of youth will continue to apply.

Although there is not a perfect symmetry in any of these connections, 17 seems about reasonable, subject to the safeguard to which I have referred. It is not a disqualification thereafter. There are particular safeguards. We have had to set a balance. In our judgment 17 is about right.

Lord Dholakia

I thank the noble Lord for that explanation. I hope that there will be guidance notes to accompany this Act and that the point about safeguards will be clearly identified. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

5.15 p.m.

Lord Rix moved Amendment No. 69:

Page 12, line 30, at end insert— ("or both").

The noble Lord said: I wish to point out that this piece of legislation displays a tendency towards grouping people into two camps: children who require special measures because they are children; and people with a learning disability or mental health problems who require special measures because of their disability or illness. By adding a provision to indicate that a witness may require special measures because he or she has a learning disability and because he or she is a minor will prevent learning disabled children from falling between those two stools.

I am particularly concerned about 17 year-old witnesses with learning disabilities. I realise that learning disabled children will be included in the legislation under the general heading of "children". However, I feel that there is a need for a positive reinforcement of their presence since they often seem to be invisible in the legal process. I beg to move.

Lord Windlesham

We have slid seamlessly from youth offender panels on to the totally different and vitally important matter of the conduct of criminal trials and the position of vulnerable and intimidated witnesses.

I wish first to make some general observations on this part of the Bill. I think it is more appropriate to do so on this amendment than on the previous one dealing with the age at which young people can obtain the special protections that the Bill provides.

We can all agree, I hope, that the balance between the interests of victims and the rights of the accused in a criminal trial is uneven. The accused has rights guaranteed by law or procedural rules. It is proper that a defendant should have safeguards against the abuse of power. However, until recently, the interests of the victims, falling short of formal rights in an enforceable sense, were accorded lesser recognition. This part of the Bill is an important step towards re-adjusting that balance.

At Second Reading I declared an interest as president of Victim Support. I repeat that declaration now. Since 1991, Victim Support has been creating a national witness service to assist the victims of crime and their families and friends in every Crown Court in the country. I believe that there are now 86 Crown Court centres where Victim Support provides that service. It is funded by the Home Office. A fruitful partnership has been developed, with trained volunteers offering support and information to over 120,000 victims annually before, during and after hearings in court. More recently that has been supplemented with a similar service in 130 magistrates' courts. We are now near the end of what I hope will prove to be positive negotiations with the Government to extend that service to all magistrates' courts. There is thus a realistic prospect of a further extension taking place in the future.

Because of this work, Victim Support, in the person of its highly respected director, Helen Reeves, was the only non-governmental organisation invited to take part in the interdepartmental working party on vulnerable and intimidated witnesses, on whose report this part of the Bill is based. The report was published in June 1998 under the title Speaking Up for Justice.

It will be no surprise that Victim Support should welcome the potential improvements in the handling of vulnerable and intimidated witnesses, although it has made a number of comments. The most important refer to the structure of Clauses 16 and 17, which are the subject of these amendments. They depart from the working party recommendation which would have made eligibility for assistance automatic for all category A witnesses, which is, broadly speaking, those who fall within Clause 16 of the Bill, including witnesses under the age of 17, which was the subject of the previous amendment, and discretionary for category B witnesses, broadly those within the scope of Clause 17 of the Bill.

My main purpose at this stage, as we begin consideration of these clauses, is to ask the Government to explain their reasons for not following in the drafting of the Bill the approach which was proposed by the working party of their own officials. We may be informed by the noble Lord that it is a matter of drafting, but what appears in the Bill is a far more legalistic approach, turning on the test of "improving"—that word is used in some places—or "not diminishing" the quality of evidence. This is a concept which many victims will find hard to comprehend and it may be that even in this House we shall need some explanation from the Minister in order to understand how the test will be applied in the courts.

Lord Williams of Mostyn

Perhaps I may deal with the point of the amendment in the name of the noble Lord, Lord Rix, and two other noble Lords, which is quite short: at page 12, line 30, to include "or both". It is clear in the Bill—and indeed explicit in Clause 21(1)—that the court may consider a witness eligible for assistance on various grounds, and not simply one. Clause 16 merely provides that, if the court is satisfied that a witness fulfils either part of subsection (1), he or she will be eligible to apply for special measures.

I hope I can give the noble Lords, and in particular the noble Lord, Lord Rix, some comfort by saying unambiguously that I would expect an application made in respect of a child who had a degree of disability to be made under both parts of subsection (1) and for it to set out why the child needs particular measures because of age and disability. The child would then benefit from the presumption under Clause 21 that a video recording of his evidence-in-chief would be admitted and that he would give further evidence by live link. At the same time, the application could set out why different or further special measures might be needed because of the child's disability and would continue to be needed even if he were to reach the age of 17.

I entirely accept that it will be extremely important to ensure that lawyers preparing applications understand that they can be made on several grounds. I believe that that is best achieved through guidance and training.

The noble Lord, Lord Windlesham, generously paid tribute to what the Government have been doing in support of a most worthy organisation, which I personally have supported over many years, and I join with him in his well-deserved tribute to the director, Helen Reeves. He mentioned funding. I believe that the Government have a good record over the past 18 months of increased funding to Victim Support. I think he was putting a fly over my nose to see whether the discussions which he described as positive might not be the subject of an announcement. There will be an announcement quite soon and it is probably left for the Home Secretary to make it. We certainly realise that the role of the victim has been inadequately thought about. Organisations such as the NSPCC have done a good deal along the lines that the noble Lord, Lord Windlesham, indicated.

In Speaking Up for Justice it was said that children who may be obviously disadvantaged and those who have a mental or physical disability should automatically have special measures. Paraphrasing the noble Lord rather brutally, his question was, "Why can we not have those measures automatically?" We want to focus the measures on those who really need them so that they will be available only if the court considers that they will improve witnesses' evidence. The court will then have to be careful and discreet in examining which measure, or combination of measures, will best serve the witness's needs.

My understanding is that those who may have a physical or mental disability, or both, do not wish to have an exclusive list because, whatever one has by way of list, one is bound to leave someone out and second thoughts perhaps make the system inflexible. It will be something of a culture change for many who sit in court, but we want the courts to be much more open-minded and alert to the fact that what the courts want is the best evidence and that simply relying on the procedures of the 19th century, perhaps, is not sufficient. We believe that this provision gives a flexible power to the court. I stress that I believe that guidance, training and encouragement have a good deal to offer.

With specific regard to the amendment, I do not think that the noble Lord, Lord Rix, needed it. I think he may well have recognised that he did not need it and I hope that the assurances I have given him have fulfilled his purpose.

Lord Rix

I am grateful to the Minister for those assurances, which I shall be able to read in Hansard tomorrow morning and wave in front of my officials at MENCAP and other organisations. I cannot answer for the noble Lord, Lord Windlesham, for whose broad support on this matter I am grateful, but, with the assurances of the Minister ringing in my ears, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Williams of Mostyn moved Amendment No. 69A:

Page 12, line 35, leave out ("suffers from") and insert ("has a").

The noble Lord said: Grouped with Amendment No. 69A are Amendments Nos. 70 and 87. It is probably helpful if we deal with them all at this stage, because I think that there will be nothing between us. The noble Lords, Lord Rix, Lord Swinfen and Lord Dholakia, wish in Clause 16 on page 12, line 35, to leave out "suffers from" and insert "has". This is not hair splitting; I believe that my amendment is better because it leaves out "suffers from" and inserts "has a". We have produced exactly the same result but I think that the Government have trumped the noble Lord, Lord Rix, and improved on his amendment by introducing the single word "a". That is another step forward. I think my best amendment in the past was to insert "but"; I have got it down from three letters to one.

The approach we adopt with regard to Clause 29 is rather different. The measures in Clause 29 will be available to the group of witnesses who are eligible under Clause 16(2)(a)(ii). They will be available to those who need help because of a disability or disorder under subsection (2)(b) or (2)(a)(i). In those parts of Clause 16 the phrase "suffers from" is to be retained. I understand the reasons why noble Lords have not tabled an amendment to those parts of the clause.

For some witnesses who are eligible under Clause 16, we think that "suffers from" may well be an appropriate description—for example, for those who suffer from degenerative or progressive disease, or who are undergoing courses of treatment for their condition, or who are suffering "from" a mental disorder.

We have approached this as carefully and thoughtfully as we can. We ought to be comprehensive and consistent in the Bill. I hope that your Lordships will not persist but will withdraw the amendment at Clause 29 and accept the government amendment to Clause 16. I beg to move.

5.30 p.m.

The Deputy Chairman of Committees (Baroness Lockwood)

I must point out that if this amendment is agreed to I cannot call Amendment No. 70 under the pre-emption rule.

Lord Rix

I am grateful to the Minister for his new amendment. It supersedes Amendment No. 70, tabled by myself and other noble Lords, and Amendment No. 87 which is consequential. I accept the Minister's explanation and, at the same time, I agree that the English used in Amendment No. 69A is considerably better than I used in Amendment No. 70. I shall have the greatest possible pleasure in not moving Amendments Nos. 70 and 87.

On Question, amendment agreed to.

Lord Rix moved Amendment No. 71:

Page 12, line 43, at end insert (", the extent to which the witness requires support and the views of relatives, carers, advocates and other relevant parties").

The noble Lord said: In moving Amendment No. 71 I shall speak also to Amendments Nos. 72 and 77 which are grouped with it.

First, I will say a little about Amendment No. 71. I very much welcome that the Bill makes provision for what may seem to many to be obvious but is often overlooked; namely, that an individual's opinion counts for something. All too often, third parties of one stripe or another confidently claim to have a monopoly on the opinions and expectations of an individual. Within MENCAP there is currently a huge drive towards facilitating self-advocacy. We would like to encourage that in relation to witnesses. However, in many cases, self-advocates still require some support in order to express their views. Without such support they might neither perceive their potential vulnerability nor the possibility of intimidation.

Without support, many people with learning disabilities lack the communication skills to make their views known. Without support, they do not understand terms such as "intimidation" or "vulnerability". People with learning disabilities may have difficulty with taking in new information, handling complex material and communicating effectively. They may need support to help them to think of what they want to say, or they may need encouragement to answer a question. For this reason, I would like provision to be made for support at this early stage.

Without this provision, how can people who may need special assistance because of their difficulty in understanding the formal procedures adopted in court make a sensible judgment about whether or not they will need assistance to participate in these measures?

Turning to Amendment No. 72—and following on from the points that I have just made in connection with Amendment No. 71—I see no reason why people close to the witness cannot be consulted in order to determine whether or not the witness has a learning disability and the extent of that disability.

As to Amendment No. 77, Clause 20 allows for expert evidence to be marshalled in considering whether a special measures direction should be made available. I am not quite sure what definition of an "expert" the Government have in mind. Is an expert a psychiatrist unknown to the witness, who can be shipped in to make a broad medical assessment of a witness's intellectual impairment, or is he somebody who, in a professional capacity, counsels the individual in the circumstances of his every day life—for example, a social worker or a community health official?

Let us not forget that the eligibility criteria for special measures includes the individual's social functioning as well as his mental capacity. If assessment for special measures consists of nothing more than labelling somebody's mental age or other general formula, then his actual capacity in relation to the special tasks ahead as a witness is likely to be overlooked.

Sometimes it is worth looking a bit closer to home, which is why I propose a new subsection. Advocates, carers and relatives should be consulted where appropriate. These are the people who are often best placed to understand the more subtle patterns of behaviour and fluctuation in capacity, and to give support to a witness in stressful circumstances. These parties should, however, only be consulted where relevant. I very much appreciate the tensions which can exist in relationships between a person—disabled or otherwise—and those closest to them. But that should not debar the court from taking opportunities to enlist their help where that help is genuinely needed. I beg to move.

Lord Renton

I am in broad agreement with the purpose of Amendment No. 71, moved by the noble Lord, Lord Rix. However, I think it should be expressed rather differently. It should read, the extent to which the witness requires support and any views expressed by relatives, carers, advocates and other relevant parties". If we do not put it in the way I have suggested, the court will have the rather strange responsibility of gathering up the various people mentioned, which it may find very difficult to do. If, on the other hand, relatives, carers, advocates and other relevant parties", are in touch with the witness about the matter, then they can come to the court and express their views. Although the noble Lord's purpose is very commendable and necessary, it must be expressed differently. In his other two amendments, the purpose is expressed in a way that is acceptable. There it reads "the evidence of in each case, and that makes it quite clear.

Lord Windlesham

Before the noble Lord replies, I wish to raise a small point following on from what the noble Lord, Lord Renton, has said. Perhaps the noble Lord will ask the draftsman to consider whether the word "views" has the precision of meaning which one hopes to find on the statute book. I do not have an alternative suggestion, but "views" is surely diffuse and imprecise.

Lord Cope of Berkeley

I rise briefly to support this group of amendments, with which I have great sympathy. Obviously I take into account what my noble friends have said about the detailed wording.

I wish to make an additional point. In these circumstances it seems that helping and supporting the witness in this way actually helps the court to arrive at the right conclusion in the case that it is considering. It is not just a question of being sympathetic to a witness who may have been a victim of crime, but of getting at the truth and getting the right decision in court.

Lord Swinfen

This Bill seeks to achieve justice. Young people with mental disability need the support of those whom they know and are confident with rather than strange experts, by which I mean those strange to them. It is important to bear in mind that a number of these young people may also have a speech impediment and only those who are close to them may understand them. I strongly support the amendment moved by the noble Lord, Lord Rix, even though it may require improvement in the way suggested by my noble friend Lord Renton.

Lord Williams of Mostyn

Not for the first time I am in absolute agreement with the observations of the noble Lord, Lord Cope of Berkeley. The object is to obtain the best possible evidence for the court and the provision is there in the pursuit of justice. We have come to this particular area of evidential law and practice very late in the day. I fully appreciate that these amendments are designed to ensure that the court takes account of the views held by a witness's relatives, supporters, carers, advocates and other relevant parties. I believe that I can live with "views". I am not sure of the extent to which that differs from "opinions", although opinions sometimes come in expert form and are expensive, whereas the views of relatives and parents are perhaps more persuasive and are free.

Therefore, the views and opinions are directed at the extent to which the nature of the disability or disorder as defined in subsection (2) is likely to diminish the quality of the individual's evidence. Where these are relevant to the court's decision it will take them into account. I do not however believe that it needs to be on the face of the Bill and perhaps I may spend a moment or two on the reasons why. In most cases the parties to any proceedings will have determined at a relatively early stage the witnesses they will or may want to call. If either party considers that one of its witnesses needs special measures under Clause 19 it must prepare and make an application to the court. One must carefully bear in mind that Clause 19(1)(b) gives the court power of its own motion to raise the issue as to whether such a direction should be given. The application must set out the reasons why the witness should be considered eligible for special measures and what measures would be likely to improve the witness's evidence. That can include a family member who deals with someone with a speech disability because the ordinary interpreter (as we should regard such a person) will do a good deal less satisfactory piece of work than someone who knows the individual in question, can calm him, reaffirm the trust between them and give much more effective, practical help to the court. I agree entirely with the noble Lord, Lord Cope of Berkeley.

In preparing the application there will have been discussions with the witness and, where appropriate, one or more of the witness's relatives, supporters, friends or any other relevant person who can advise on the help that the witness is likely to need. That may well be the help described by the noble Lord. One must bear in mind that the witness may well have his own views and may not want assistance from relatives. One must not fall into the trap of which the noble Lord, Lord Rix, has warned us in the past, rightly, and take away decision and individual judgment from someone simply because he has a disability. He may not want his relatives to assist him. Many witnesses with disabilities are perfectly able to speak for themselves and, much more importantly, may well want to do so. The court should take account of those views in its decision on eligibility and the measures to be provided under Clauses 16(4), 17(3) and 19(3)(a).

If one has a very young or deeply handicapped witness a relative, supporter or carer may be a better advocate for the witness's needs than the witness himself. There is nothing to prevent any of the parties suggesting to the court, or the court deciding on its own motion, that it should hear the views of a relative or carer. We must allow the court flexible discretion in a particular case. I am happy to underline to the Committee the existing common law powers that allow the court to hear evidence of such views whenever it sees fit. Therefore, the discretion is already there.

A second effect of Amendment No. 71 is to require the court to consider the extent to which a witness requires support when it determines whether or not he is eligible under Clause 16(1)(b). This is not necessary. The court is already required under that subsection to consider whether the quality of a witness's evidence is likely to be diminished by disability or disorder. Under Clause 19 it is required to consider whether any of the special measures would be likely to improve or maximise the quality of the witness's evidence. These provisions constitute a duty on the court to consider whether the witness requires support from a special measure in order to give his best evidence, as the noble Lord, Lord Cope of Berkeley, suggested.

The noble Lord, Lord Rix, helpfully drew attention to the question of different provisions for experts. That is not in any way intended to imply that an expert is better than a parent, carer, relative or friend. It simply falls in the context of the making of rules of court. The making of rules of court relates simply to the provision of expert evidence, in the way that there is now provision for expert evidence in many cases and no particular provision is made for an ordinary lay witness. An expert witness is anyone whose credentials satisfy the court whether because of academic qualification or expertise. As the noble Lord, Lord Rix, suggested, the expert may well be a psychiatrist who perhaps knows the consequences of the disability of the particular individual. Therefore, Clause 20(6) does not attempt to imply that an expert is better, but is simply a provision for making rules of court for the practical disposal of court business.

5.45 p.m.

Lord Mackay of Clashfern

Can the Minister tell the Committee whether there is any way in which the court by or on behalf of a witness may be alerted to special needs? The clause provides that the parties may do so or that the court may do so of its own motion. It occurs to me that, for example, Victim Support may know of circumstances that are not within the knowledge of the parties and wishes to bring that to the attention of the court. In a sense that is a matter for the court of its own motion, but it may be necessary—I do not know—to make clear that that possibility exists.

Lord Williams of Mostyn

I am most grateful to the noble and learned Lord. There is no reason why Victim Support or any other caring organisation whether or not in loco parentis should not notify the court. That has been my experience in the past where similar organisations which are not in a quasi-parental or caring relationship have been helpful, but I undertake to check the matter further. Based on past experience I believe that that is the position, as the noble and learned Lord has correctly pointed out.

Lord Rix

With the assurance that the Minister has just given the noble and learned Lord, Lord Mackay of Clashfern, I am prepared to withdraw the amendment, with the proviso that I should like to read most carefully the Minister's very generous response to see whether or not it is necessary to contact his department again before the Bill reaches its next stage. On the basis of the assurances just given in the noble Lord's summing up, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 72 not moved.]

Lord Rix moved Amendment No. 73:

Page 13, line 5, at end insert— ("( ) The court must state in open court its reasons for refusing an application that a witness falls within subsection (2)(a).").

The noble Lord said: I am sure that distinguished members of the judiciary in England and Wales—a number of whom I am happy to say are present in the Chamber—will be fully supportive in assisting both defendants and witnesses in the granting of dispensations for special measures where appropriate. However, one must guard against the rejection of special measures on principle, whatever the principle might be, or without due consideration of the specific requirements of the individual.

While Clause 20 stipulates that a court must give its reasons for refusing an application for a special direction, there is no requirement on the court to state in open court its reasons for refusing an application for special measures on the ground of intellectual impairment. I envisage judges doing so as a matter of course but I should like to ensure that the process is open and transparent. I beg to move.

Lord Swinfen

My name is also to the amendment and I support it. I should have thought it essential to make certain that the court is accountable, and accountable to the public, which all courts must be. Such a provision may also be useful to a higher court should the case go to appeal at a later stage.

Lord Williams of Mostyn

I accept that. That means it would be inevitable that a court making such a decision and determination would feel obliged to specify its reasons in open court. I think that any judge who did not do that would be swiftly and severely rebuked by a higher court of appeal.

As the noble Lord, Lord Rix, mentioned, the courts are required by virtue of Clause 20(5) to give their reasons for refusing an application for a special measures direction. I repeat: if a court decides in any particular case that a witness does not have the condition claimed, I do not believe that the court would fail to explain it.

I entirely accept that if witnesses are to have faith in the new system it is important for the courts to be clear about their reasons for refusing applications for special measures, in particular if a court accepts that a witness has a disability but does not accept that special measures would improve the quality of the evidence.

I believe that the best way to ensure consistency is trough training and guidance, not through added detail on the face of the Bill.

Lord Rix

I receive encouragement from the faces opposite that by withdrawing the amendment I am doing the right thing. Having received nods and smiles, in particular from the noble Lord, Lord Dholakia, whose name is to the amendment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 16, as amended, agreed to.

Clause 17 [Witnesses eligible for assistance on grounds of fear or distress about testifying]:

Lord Cope of Berkeley moved Amendment No. 73A:

Page 13, line 32, leave out from ("section") to end of line 34 and insert ("if he requests such treatment").

The noble Lord said: Clause 17 brings us to the question of witnesses who are vulnerable because of fear or distress for various reasons in any type of case. In those circumstances any witness can have the protections, the special measures, provided by the Bill—screens, or whatever is appropriate to his case. I think that we are all in agreement on that.

The amendment draws attention to subsection (4) of Clause 17 which makes special provision about complainants in sexual offence cases. As drafted, subsection (4) provides that such complainants will have such protection unless the court thinks that their evidence will not suffer by reason of their fear or distress as set out in subsection (1).

If the court thinks that their evidence will suffer, as described in subsection (1), they are eligible anyway. The subsection therefore at first sight appeared to achieve nothing. Complainants are either eligible under subsection (1) or they are not. But that makes one wonder why subsection (4) is in the Bill. I presume that someone asked himself the question as to whether complainants in sexual offences cases need special eligibility for protection even if the subsection does not provide it. If we fully trusted the courts, the provision would be totally unnecessary. However, by inserting a subsection along these lines, it makes clear Parliament's will that complainants in sexual offence cases should be especially eligible, even though the detailed provisions do not provide that.

However, what special eligibility should complainants in sexual offence cases have for the measures set out? It seemed worth considering adjusting subsection (4) to provide that those complainants should have protection if they want it. In other cases it would be the court's discretion. In the case of vulnerable witnesses the court would wish normally to grant the application where those witnesses were frightened or in distress and unlikely to give good evidence on that account. But it would be the court's decision. However, in order to draw special attention in the case of sexual offences, we might wish to provide that it would be the complainant's decision.

Clause 19 (1) makes clear that parties to the proceedings—they presumably include the complainant and the prosecution—can request special measures; it is not always up to the court. The amendment provides that if a complainant in a sexual offence case requests the special measure, it should follow automatically. There is no doubt that fear and distress can be very great. We have read about that; no doubt some Members of the Committee have seen that in courts. I am not against drawing special attention to those cases. I do not believe that subsection (4) does so satisfactorily. I believe that Amendment No. 73A provides a better way.

Lord Thomas of Gresford

I regret that I have to oppose the amendment. In subsection (1) there is a burden upon a party who is calling a witness to satisfy the court that that witness is likely to give evidence which will be diminished by reason of fear or distress. The burden is on a balance of probabilities because the word "likely" is used. However, in subsection (4) there is a presumption in the case of a complainant that that person is eligible for assistance. It would be for the other party to convince the court on balance of probabilities that subsection (1) does not apply. Therefore there is a marked distinction as to where the burden of proving the issue lies between those two sections.

However, that is not the reason that I oppose the amendment. The tradition of criminal trials in this country is that they should be held openly; that the accuser and accused and their witnesses should be seen and heard on an equal footing. Over the years we have recognised that some vulnerable people require special protection. But a balance has to be sought in deciding the appropriate way to deal with vulnerable witnesses.

Stress is inevitable in the trial process. Any person who goes into court in any capacity, whether it be the judge, the jury, the advocates or the witnesses, is subject to a degree of stress. That is part of the process by which the truth ultimately emerges through our adversarial procedures. While it may be right to give special protection to people who are shown to be vulnerable, as these special measures do, one cannot take that too far. What is suggested by this amendment is that any complainant, however robust they may be in their personality, can, at their own request, require special measures. I find that dangerous.

Why do I find that so? It is easier to maintain a false story behind a screen or at the other end of a video link than it is to go into the witness box and confront the person against whom one makes allegations. To my mind, one can "cotton-wool" too much. If there are vulnerable witnesses, certainly there should be special measures, but if they are not vulnerable, let the traditions of fair and open trial in this country remain.

6 p.m.

Lord Williams of Mostyn

Under the Bill at present, as it has been rightly said, complainants in sexual offence cases will be presumed to be eligible for assistance unless the court is satisfied that they are not.

Therefore, the court will have to consider whether the witness's evidence is likely to be diminished by fear or distress. If it considers that the witness's evidence will not be affected, having considered the witness's own views under subsection (3), then it will decide that the witness is not eligible.

We expect that unless the witness satisfies the court that he or she does not need help, he or she is likely to be deemed eligible. It is then for the court to consider, on application, whether and which special measures would help.

There may well be cases where the court wishes to dissent from the witness's views, perhaps because of representations made by the prosecution or the defence. The court needs to keep proper control of the proceedings. We believe that it is important that the witness's views should not be paramount.

The effect of the amendment of the noble Lord, Lord Cope, would be to make the witness's views the only consideration for the court. It would remove the court's discretion to decide whether the witness was eligible for assistance.

Perhaps we may take the case of someone who is genuinely in fear or distress. That may well be such that the witness does not want to express it and seeks the protection of the special measures. The prosecution or the defence may well have other material extraneous to the witness's own request, which may well be compelling. I do not believe that the noble Lord's amendment deals with that situation at all. As a matter of principle, it should be for the court to decide whether a witness is eligible for assistance and not the witness, because I do not believe that the witness's determinative choice would be in the interests of the trial process. It seems to us that we have got it right in the current provision: those who need help are considered eligible for help while preserving the court's overall discretion. Having reflected on the way in which I have put the matter, I hope that the noble Lord will come to a different conclusion.

Lord Cope of Berkeley

I shall reflect on the way in which the noble Lord has put the matter. I see that there is a difficulty as regards permitting the complainant in a case simply to request special treatment. There is some force in the argument and I understand it. Not being a lawyer, I am slightly confused by the difference in the tests as regards subsections (1) and (4). It seems to me that subsection (4) is somewhat stronger although it specifically includes the test in subsection (1) as being the key as to whether protection is given. I had better take further and better legal advice on the matter in order to divine the difference between the two. In the circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 17 agreed to.

Clause 18 [Special measures available to eligible witnesses]:

Lord Rix moved Amendment No. 74:

Page 14, line 3, after ("that") insert (", no later than 1st January 2000,").

The noble Lord said: I do not believe that I have been so knee-deep in paper since we were re-writing the last act of "Dry Rot" one hour before the curtain went up on the first night. In moving this amendment I am delighted that the Home Office secured an early legislative opportunity to advance the protection of vulnerable witnesses. I fully support the principles of this Bill. Once on the statute book this legislation should accelerate the implementation of the broader proposals contained within the earlier consultation paper Speaking Up For Justice, which deals with every aspect of the judicial process from the first stage of reporting a crime to the police to the court room and beyond. I am aware that excellent work is going on behind the scenes in bringing all these measures to fruition although it is clear that some will take longer than others.

For instance, the removal of wigs or robes will come into force nationally as a special measure the day after this Bill becomes law. Others, such as the use of intermediaries, will require careful piloting and evaluation over time before full implementation can be considered. Nevertheless, it would be reassuring to know that the Government have an end date in mind for the culmination of their implementation strategy.

This amendment seeks clarification on the timetable leading to the introduction of new measures. The Government want to pilot these measures. When will the pilots begin? How long will the pilots last and on what date will the special measures be implemented nationally? If a date has not already been set, perhaps consideration should be given to 1st January 2000 as proposed in my amendment.

Perhaps I may also raise the question of how the Government envisage tackling situations which may arise where a witness requires special measures in court, which are only available in court rooms in another county. I raise that point because the experience of giving evidence may be extremely traumatic for some people with learning disabilities. I fear that relocation will only add to the trauma. I beg to move.

Lord Williams of Mostyn

As the noble Lord, Lord Rix, has pointed out, Part II of the Bill gives effect to a very large number of recommendations made in the Speaking Up For Justice report. It is 26. The implementation is considered as part of the wider programme of reform of the way in which our criminal justice system treats vulnerable witnesses.

We have a steering group set up to oversee the implementation of all the recommendations in Speaking Up For Justice, not simply the 26 in the Bill, but the other recommendations as well. We hope that the implementation programme will be ready before the summer.

Some of the legislative and non-legislative changes are, of course, inter-dependent. We want to identify witnesses early on who need help and then treat them appropriately thereafter. It is not realistic to think that everything in the Bill can be brought into force by the end of the year. In many cases I believe that it should not. We know only too well that poorly implemented legislation is almost as bad as no legislation at all.

There is an enormous task as regards training guidance needed to ensure that all criminal justice practitioners, not simply those who sit as magistrates or judges, are able to use the new provisions. Some of the special measures mean buying or hiring special equipment like video and live link facilities. That cannot begin until after Royal Assent. There are some ideas in the Bill, as regards video recorded cross-examination, that have never been tried. Several Members of the Committee have expressed concern as to how they will work in practice. We need to implement them quite carefully.

Perhaps I may assist the noble Lord, Lord Rix, in one or two ways. The new measures to help witnesses will cost about £6.3 million. The cost of preparing applications for witnesses who need measures will be about £1.7 million—I have rounded that up slightly. That is per year. The use of live-link evidence will cost about £1.8 million over 10 years. The cost to the CPS applying for live links will be about £348,000. The cost of CPS video recorded evidence-in-chief will be about £683,000 per year. So quite significant costs are involved.

That is not used to indicate that we are not wholly committed to the purposes and principles of this Bill. I am simply giving those figures to reassure the noble Lord, and others who share his concerns, that we mean to implement this Bill and to put the measures in place. There is quite a lot of work to be done. I have given the figures only to indicate that there is significant work to be done and it could not usefully be done were we to have a timescale as rigid as 1st January 2000. But I assure the noble Lord that we mean to get on with this.

Lord Rix

I recognise that 1st January 2000 is only a short time away, as I am sure we are all only too well aware. I am glad to have the Minister's assurance that the costs for ensuring justice for people with learning disabilities do not enter into the Government's thinking. With that assurance ringing in my mind and, I am sure, the belief that all these measures will be implemented as soon as is humanly possible, without reference to the costing, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 18 agreed to.

Clause 19 [Special measures direction relating to eligible witness]:

Lord Cope of Berkeley moved Amendment No. 74A:

Page 15, line 3, after ("witness") insert ("or any other party to the proceedings").

The noble Lord said: The noble Lord, Lord Rix, did an extremely good job in rewriting "Dry Rot" at the last minute. I am having less success in trying to rewrite parts of the Bill.

The amendment is intended to draw out whether other parties to the proceedings may say whether they believe that special measures are not required. It is not difficult to imagine a witness thinking that it would gain sympathy with the jury if there were special measures of one sort or another. It may be difficult in such circumstances for the court to refuse. However, the defendant or people acting for him may wish to express a view.

It may be that another part of the Bill makes that possible and my amendment may be unnecessary. I infer from the reference in Clause 20 to "uncontested applications" in that context that those applications can be contested but I am not clear as to how that can be done unless my amendment is accepted.

However, I am encouraged also by government Amendment No. 75A, which is grouped with this amendment. That refers to the next clause. It appears to be making a similar point. Therefore, I believe that other parties to the proceedings should be able to express views on those matters. I suggest that my amendment may be necessary to achieve that. I beg to move.

6.15 p.m.

Lord Thomas of Gresford

I support the spirit in which this amendment is moved, although I suspect it is unnecessary. However, it provides me with an opportunity to ask the Minister to confirm that there would be no question of any—if I am still allowed to use the expression—ex parte proceedings, as there is in public interest immunity applications.

Lord Windlesham

This amendment provides an opportunity to refer to a concern that has been raised by the NSPCC about the impact of Clause 19(2) and Clause 19(3) in relation to child witnesses. Those subsections require the court to determine whether any of the available measures would, in the court's opinion, be likely to improve the quality of evidence given by a witness, and then to determine which measures would be likely to maximise the quality of the evidence.

The court has to consider all the circumstances of the case. The views expressed by the witnesses are only one circumstance to be considered. The court must consider also whether that special measure may, tend to inhibit such evidence being effectively tested by a party to the proceedings". In the opinion of the society, that is potentially a more stringent series of hurdles to leap than the threshold which currently exists. In its view, if the proposed legislation is not amended, there will be a real risk that child witnesses will receive even less assistance from the available special measures when the intention is that they should receive more assistance.

I am not sure whether the amendment in the name of the noble Lord, Lord Cope, would make matters worse or better from the NSPCC standpoint. However, I ask the Minister to take note of those observations and to write to me. I shall make sure that the reply is passed on to the proper quarter.

Lord Williams of Mostyn

I am extremely grateful for that. It would trouble me in particular, since I was a trustee of the society until the election intervened, if those were the consequences. I shall look at that with particular care with officials and I undertake to write to the noble Lord in the way that he has generously suggested.

I should say in response to the noble Lord, Lord Thomas of Gresford, that we expect that applications would be made inter partes. However, I do not wish to mislead the Committee. Clause 20(6)(d) enables rules of court to make provision for confidential, sensitive information to be used for such an application and that is allowed to be withheld from any party to the proceedings. It is possible, in rare cases, that such information may well be legitimately necessary for such applications. I must sound that cautionary note because the noble Lord and I will know of some cases which we can easily remember where that may be a proper safeguard. But I agree with the general proposition that those matters should be inter partes.

I take the point made by the noble Lord, Lord Cope. I believe that it is better dealt with by my Amendment No. 75A to Clause 20. It is important to have a statutory requirement for the court to take into account what measures a witness says he would find useful. The court must be required to consider whether a special measure will inhibit a party's ability effectively to test the witness's evidence. That normally means asking the parties for their views.

We do not need an additional requirement to consider the views of every part to the proceedings. In practice, it will usually have considered the views of the party calling the witness and making the application. In the course of considering whether the measures will make it difficult for any party to test the witness's evidence effectively, it will have to consider any other party's views if the witness is relevant to the case against that party. There is nothing to prevent the court seeking any party's views at any time, if it wishes to do so.

If a court decided to make a special measures direction of its own motion, I should certainly expect it to consult the party calling the witness as well as the witness and the other party. Therefore, the court will have considered the issues as to how effectively the witness's evidence can be tested and what measures the witness would wish to use when it makes the original direction.

The government amendment is intended to ensure that it is possible for both parties to make representations about those issues later on if circumstances change. The Bill at present only allows the party which applied for the direction to ask for it to be overturned or varied, unless the court decides to do so of its own volition.

Liberty and, separately, the Guild of Editors have suggested to me that either party should be allowed to apply for a special measures direction to be varied or discharged if the party is aware that there has been a material change of circumstance since the direction was made or was last made. Having thought about it, I believe they are right. There should be equality of arms, as it were, between the parties. My amendment will achieve that. I am grateful to those who have brought the matter to my attention. I ask the noble Lord to withdraw his amendment as not being necessary in the light of my explanation and I ask the Committee to accept my amendment because I believe that it does justice to both parties when there has been a supervening change of circumstance.

Baroness Carnegy of Lour

Before my noble friend decides what to do with his amendment, perhaps I may make a request of the Minister. When he replies about the NSPCC submission, will he send copies to other noble Lords? He did so previously and it was a great help. What the NSPCC says about Clause 19(2) and (3) is extremely disturbing. I wish to be certain that the noble Lord is right.

Lord Williams of Mostyn

The noble Baroness is right. I did not say so on this occasion, but my invariable practice is not only to write to the noble Lord who raises the issue but to all other Peers who have participated in the debate or similar debates. I always place a copy in the Library, too. I should have said that, but perhaps your Lordships would take it as read in connection with any undertaking about letter writing that I give.

Lord Cope of Berkeley

I support the improvement to Clause 20 as suggested by the Minister and the government amendment. I am not sure why my amendment to Clause 19 is not also necessary, but I can see that the court must consider all the circumstances of the case. I suppose that that covers the matter sufficiently. Having had the Minister's reassurance that my amendment is unnecessary, I beg leave to withdraw it.

Amendment, by leave, withdrawn.

Lord Rix moved Amendment No. 75:

Page 15, line 4, leave out ("might tend to") and insert ("will").

The noble Lord said: In moving Amendment No. 75, I am aware that in providing special measures for witnesses the court must primarily focus on the necessity for quality evidence and, as a corollary, on the circumstances and requirements of the individual witness. However, I have concerns that Clause 19(3)(b), which allows the judge to rule out the use of special measures on the grounds that they might tend to inhibit the quality of evidence, could be used inappropriately either on grounds of principled objection to the use of special measures or through misinformation about the likely impact of special measures. The language in the clause could be tightened up simply, but with important effect. The Minister has already corrected my English and I hope that he will allow me to correct the English in the Bill. My amendment suggests that rejecting special measures on the basis that they "might tend to" inhibit such evidence is not ground enough. Rather, special measures should be ruled out only if the measures "will", with a greater degree of certainty, inhibit the evidence. I beg to move.

Lord Swinfen

I support the amendment because I believe that it is more in keeping with the spirit of the legislation than the words in the Bill. Where an eligible witness is the main witness for the prosecution, and without whose evidence the prosecution will fail, I would not put it past a clever lawyer to argue that the words "might tend to" are appropriate in his case and rule him out so that he could not give evidence with the necessary support. It would be much more difficult for a lawyer to do so if the word "will" were inserted. It would strengthen the case and strengthen the court's hands.

Lord Williams of Mostyn

We return to the balance drawn to our attention by the noble Lord, Lord Thomas of Gresford. We must not go too far in attending to the needs of a particular class of witnesses but not constantly bearing in mind the needs of the defendant and his witnesses in a criminal case. I understand the spirit behind the amendment, although I have to dissent, but if it were accepted the court would have to be sure that giving any special measure to a witness would inhibit the ability of the other party in the proceedings to test that witness's evidence before it could refuse the measure.

Clause 19(3)(b) allows the court the discretion not to award a measure or measures if it considers that there is a marked possibility that it would inhibit the witness's evidence from being properly tested; in other words, "might tend to inhibit". That is a fair balancing act, bearing in mind that not all defendants are guilty simply because they are accused. The purpose of an adversarial trial in public is to protect the defendant's rights as well as to be tender about the rights of the complainant and the witnesses.

We believe that this balancing act needs to be sustained. The adoption of a further inhibition in the terms put forward by the noble Lord goes too far the other way. If the court has any doubts about whether it is possible adequately to test a witness's evidence, if evidence is to be given with the assistance of a special measure, it should not award the measure.

I believe that such conflicts of interest would be rare. The measures are designed to include the quality of a witness's evidence, but they are not designed to prevent the evidence he gives from being challenged. I do not believe that we should go as far as the noble Lord, Lord Rix, goes in the amendment.

Lord Rix

I have no wish to push the Minister off the tightrope in his balancing act at this stage. I should like to read his response in Hansard and consult with my colleagues before perhaps returning to the matter at a later stage. In the meantime, I beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

Clause 19 agreed to.

Clause 20 [Further provisions about directions: general]:

Lord Williams of Mostyn moved Amendment No. 75A:

Page 15, line 29, leave out ("by the party at whose request the direction was given,") and insert ("made by a party to the proceedings,").

On Question, amendment agreed to.

Lord Rix moved Amendment No. 76:

Page 16, line 4, leave out ("the") and insert ("more than one").

The noble Lord said: Without wishing to make the application process for special measures unduly bureaucratic, it seems to me quite straightforward for the court to reconsider at least once any application for special measures which has been rejected. It is unlikely that potential witnesses will pluck their desire for special measures out of thin air. More often than not, the needs will have been identified earlier and support will have been provided during the police and CPS processes. If needs have been identified earlier, it makes sense to offer continuity of provision throughout the justice system. Therefore, if support were denied at this last hurdle it might be sensible for the court to reconsider. I beg to move.

Lord Williams of Mostyn

I cannot accept the amendment. I know that it is well-intentioned, but I believe that the consequences would be adverse. Clause 20(6) is intended to enable the rules of court to stop parties from renewing applications for special measures once the court has turned them down. The exception, quite rightly, is where there has been a material change of circumstances.

Applications for special measures will normally be made at a pre-trial hearing. It is very important that any directions made about special measures to be used at the trial should be binding. The purpose of this is to ensure as far as we can that the witness will know before the trial how he will be giving evidence and will be able to prepare himself appropriately. The judge must take into account more than simply the witness's circumstances. He must decide whether those circumstances will have an effect on the quality of the witness's evidence; whether the measures proposed will be able to improve the evidence; and whether special measures might inhibit the ability of other parties to test the evidence effectively. Therefore, there may be a number of good reasons to refuse an application for special measures not related to the witness's disability or distress.

We do not think it right that the parties should be able to renew applications simply because they do not like the decision. It will delay the trial, which is a vice, and more importantly and fundamentally, it will be confusing and distressing for the witnesses. The first application should be the last application unless there is an actual change in circumstance which means that different measures might be needed or that the court might sensibly take a different view. I am sorry to put this quite so plainly, but I think the noble Lord's amendment will do a great deal of damage to those who need protection.

Viscount Bledisloe

May I ask the noble Lord a question? "A material change of circumstances" normally in law, I think, means something that has happened since the application was made and not facts that were available at the time of the application. Supposing the facts had not been fully laid before the court on the first occasion, perhaps because the witness had a disability or through fear did not really explain the situation properly. Should it not perhaps say whether there has been a change in the circumstances which were put before the court on a prior occasion, to allow for the situation where there were facts which the court did not know about but which do not technically amount to a change of circumstances because they have not occurred since the application was made?

Lord Williams of Mostyn

That is certainly a point which I will consider. However, I do not want to be in a position of allowing, encouraging or enticing those who make applications simply to be able not to place the circumstances upon which they rely fully before the magistrates or before the judge at a pre-trial hearing on the basis that they can say "Well, we did not have this information available and this is a material change of circumstance". I will certainly look at that, but at the moment, subject to reviewing the point that the noble Viscount has made, I think that the present formulation is right. I will certainly look at it again, but without any undertaking, because I think we have got it right.

Lord Rix

I should hate to cause any damage to court proceedings with regard to people with a disability and others, as indicated by the Minister. I am of course delighted that he is prepared to look at these slight alterations to a part of Clause 26 and no doubt we shall see signs of this at the next stage of the Bill. With that in mind, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 77 not moved.]

Clause 20, as amended, agreed to.

Clause 21 [Special provisions relating to young witnesses]:

Lord Ackner moved Amendment No. 78:

Page 16, line 17, leave out ("must") and insert ("may").

The noble and learned Lord said: Clause 21 deals with special provisions relating to young witnesses. The tiny amendment which I seek is to Clause 21(2) which says that, In such a case the court must (subject to subsection (5))give a special measures direction…". I am seeking to remove the word "must" and put in the word "may" so that there is greater flexibility. I beg to move.

Lord Renton

I should like to support the amendment moved by the noble and learned Lord with extreme brevity on this occasion. I wonder, however, if I may just make a few more comments on this. I think that in all circumstances we must not fetter the discretion of the court to do whatever justice requires in the infinitely variable circumstances which can arise, many of which are unforeseeable. If we are in doubt we should always give the court a discretion, and I think that this amendment is therefore an important one.

Lord Cope of Berkeley

The noble and learned Lord, Lord Ackner, was indeed extremely brief and perhaps, because of that brevity, he did not make an additional point which has occurred to me—but knowing his expertise, it may also be that it is not a very good point! It seemed to me that subsection (5), to which all this is subject, does indeed give a good deal of discretion to the court and goes a long way towards saying "may". Therefore, it would be much better if the word "may" was inserted as the noble and learned Lord suggested.

Lord Warner

I should like to suggest that we do not pursue this particular amendment and I should like to draw your Lordships' attention to the fact that for 10 years there have been on the statute book provisions in relation to video-taped evidence by children. It seems to me that the Bill as drafted gives a pretty clear message about the will of Parliament in this kind of area. Perhaps I may draw your Lordships' attention to a point that I made at Second Reading. It is worth bearing in mind a Home Office police research report published in 1996. It found, and I quote, There now appears to be considerable reluctance on the part of judges to allow video evidence and interviews to be used. I suggest that we need to stick to the wording in this particular Bill because this Bill is actually about ensuring that the courts give adequate protection to vulnerable children, particularly in cases involving sexual abuse. I suggest that this amendment would actually weaken that kind of protection.

I draw your Lordships' attention also to some of the statistics that I quoted at Second Reading. I will not repeat them, other than to show that prosecutions for sexual abuse of children of one kind or another dropped very dramatically between 1985 and 1995, when the Pigot recommendations were in force. I suggest to your Lordships that this actually demonstrates that there might perhaps be some lack of enthusiasm on the part of some courts for admitting video-taped evidence. If I may, I would suggest that we keep to the working of the Bill as presently framed.

Lord Williams of Mostyn

As the noble Lord says, Clause 21 creates the presumption that witnesses under 17 will give their evidence-in-chief by means of a video recording made before trial and any further evidence at the trial will be given by live television link.

The court cannot, on the current drafting, dispense with these measures unless it is satisfied that they would not improve the completeness, coherence and accuracy of the child's evidence. This amendment, if carried, would dispense with this presumption, making the arrangements merely a possibility for the court to consider.

The noble Lord, Lord Warner, is quite right that this would undermine arrangements for child witnesses which have been in place since 1992, because they were inserted by the Act of 1991 in the Criminal Justice Act of 1988. Since that time which, as the noble Lord said, is several years ago, it has become increasingly common for child witnesses to give their evidence-in-chief on video soon after the alleged offence has taken place. A child's memory is often fresher at that stage and it reduces the number of times a child must be taken through his evidence, and the less formal setting outside the court can mean that the child is more relaxed and able—this is the important aspect—to give better evidence.

Since the amendments to the Act of 1988, many children have benefited by giving evidence at trial by live link away from the intimidating setting of the court and away from those who are sometimes unsympathetic and sometimes hostile. Until now, live link has been available mainly for children in cases of sexual offence or physical assault allegations. We believe the measures should become the norm for all child witnesses. We live, after all, in a visually literate society, which is well used to the medium.

The Bill therefore creates the presumption that all child witnesses who are called to give evidence should be able to do so by video-recorded evidence and live link, no matter what the offence being tried, unless the court is satisfied that the measure is not needed by the witness. The importance of Clause 21 and its present presumption is that it gives those working with children confidence to make a video recording of evidence-in-chief in the expectation that it will be admitted; it will give a child some certainty about how he will give evidence at trial. Everyone who has worked with children in these circumstances knows that one of the terrible burdens we put upon them is the burden of uncertainty—how the child is to give evidence very often many months after the alleged incident, and many months to a child of tender years is a lifetime.

We recognise that we need certain exceptions. If the court can be satisfied the witness does not need the measures, it will not have to award them. That applies if the court considers that other measures would meet the child's needs or that the child did not need any measures at all. Of course, the overarch is that the court can still exclude a video recording or part of it if it considers that would be in the interests of justice or because proper procedures and rules had not been followed when it was made.

The noble Lord, Lord Thomas of Gresford, indicated earlier—I agree with him—that the court process is stressful for judges, for practitioners and for advocates. But we need to bear in mind that a child is not just a small adult; it has different needs that we have overlooked for far too long. We are therefore adamant in our view that this clause is properly drafted for the circumstances with which we deal.

Lord Ackner

I apologise for startling some of my colleagues with the brevity of my introduction. I wanted them to know that I read in Hansard the censorious observations the Lord Chancellor made in my absence last Thursday following an "aberrant" Division which I caused.

Having listened to the Minister I should like to reflect on what he says. There appears to be considerable substance in it and at this stage I beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

[Amendment No. 79 not moved.]

Clause 21 agreed to.

Clause 22 [Screening witness from accused]:

6.45 p.m.

Viscount Astor moved Amendment No. 79A:

Page 17, line 37, at end insert— ("(4) The screen or other arrangement may not prevent the witness from being seen by representatives of the news media unless the court gives permission.").

The noble Viscount said: In moving Amendment No. 79A I should like to speak also to Amendments Nos. 79C and 80A.

These amendments derive from concerns expressed by the Guild of Editors—an institution which represents 300 editors of national and regional newspapers as well as its editorial counterparts in commercial broadcasting and the new media. Its interest in the Bill relates to new reporting restrictions and extended statutory powers of the court to exclude the press from the courtroom.

The guild feels that if the current restrictions are not amended, it could have an unintended but disproportionate and unnecessarily highly restrictive effect upon the publication of matters of public interest; for example, for police to appeal to the public in murder inquiries. They could also impede the proper application of the open justice principle and discourage reports of legal proceedings.

Some proposals, such as the extension of anonymity for under 18 year-olds beyond the restrictions of Section 49 of the Children and Young Persons Act, predate the current Government. The guild welcomes attempts to curb abuse of the new provisions which appear on the face of the Bill and within the Explanatory Notes. However, the Bill will still unduly curb previously lawful publication unless amendments are made. Even then, those will have to be backed by Statements in Parliament by the Minister and perhaps guidance to the courts.

Editors continually rely on the court's discretion to allow them to demonstrate that the parties, clerk, judiciary or Bench have misinterpreted or misapplied the law or ignored precedent, and thereupon persuade the courts that orders restricting reporting should be modified or lifted. The guild feels that the proposals in the Bill will be easily exploited to protect those who find publicity embarrassing instead of vulnerable witnesses being protected, as is intended.

It seems likely that the special measures directions will be routinely deployed in the courts, given their applications to proceedings in respect of sexual offences and those involving 17 year-olds. Editors have no doubt of the alacrity with which applications will be made for the protection of witnesses, particularly parties who appreciate the potential for the avoidance of adverse publicity if the press and public are cleared from the court and there is no danger of any report of a failed application until the determination of proceedings.

We suggest that open justice safeguards should be included in the Bill to preserve public scrutiny of legal proceedings and the communication of an account of the proceedings to the wider public by the media. We suggest that the Bill ought expressly to provide that the press and the public should be able to see and, more importantly, hear the evidence given by live link. Unless the Bill is amended courts may consider that the press and public presence is optional. The Bill ought to provide that the press and public ought to be able to attend the court and hear evidence given by means of a live link if and when the court has moved to another place which has facilities for live linkage which the normal courtroom lacks. Provision should be made to ensure that the press and public can view and hear any video-recorded examination or re-examination.

The guild also fears that Clause 24 will be exploited to avoid embarrassing publicity providing an easier route to the in-camera proceedings than current measures. We find it difficult to understand why the presence of the media's representatives is likely to intimidate a witness in connection with the proceedings or would facilitate such intimidation. I understand that current powers of punishment for contempt of reporting restrictions under Sections 4(2) and 11 of the Contempt of Court Act 1981 would presumably meet many of the potential concerns. The power to exclude the press and the public should not be routinely used in all cases of sexual offences. Complainants automatically enjoy anonymity under the law and protection under media codes. The scope for contentious cross-examination and any fear of consequent salacious reporting is reduced by the Bill's provisions in Chapters II and III.

It is welcomed that the Explanatory Notes contain the statement: It is expected that the press would normally be allowed to remain". It is important that the press, as the public's representative, be permitted to remain in order to retain the element of public scrutiny which is essential to open justice. Exclusion would run counter to past practice and be inconsistent. For example, the press have the statutory right to attend youth court proceedings, so it makes little sense to create an anomaly and enable their exclusion when under 17 year-olds appear before adult courts. The courts may also permit the press to stay in the absence of the jury and the rest of the public in other circumstances without prejudice to the proceedings.

The guild fears that the new power creates a precedent for a routine departure from the open justice principle. We suggest that the Bill could be amended to limit expressly the circumstances in which the press can be excluded. Currently the wording could be interpreted by the court as requiring the opposite. By singling out some media representatives for exclusion, the Bill unfairly excludes newspapers and news agencies but, interestingly enough, not television or the new media or magazine journalists or, indeed, authors. In any event, exclusion suggests that the real object of the provision is to restrict publication even in the circumstances where the current powers, and those in Chapter IV of the Bill, would not be justified. I do not believe that is the Government's intention.

The media and other parties ought to be given the statutory right to challenge applications to exclude them. The restriction of the rights of parties, or the court of its own motion, is inconsistent with the provisions introduced to meet this country's obligation under Articles 6 and 13 of the ECHR by the Crown Court Rules Act, as amended.

Either party might seek to use Clause 24 to avoid embarrassing publicity, although the witnesses in question, including the complainant, might well wish to present their case in open court, and, in the case of complainants of sexual offences, might well be prepared to waive anonymity as well. It is possible that schools, public institutions, public services as well as defendants whose care and conduct may be called into question would prefer that young complainants of abuse or assault should not have an opportunity for their accusations to be stated in open court. Applications may be motivated by the desire to limit embarrassing publicity indirectly, although presented as applications in the complainants' best interests.

We believe that there is a danger of creeping secrecy. That is intensified by the possibility of rules of court enabling exclusion orders to be made without a hearing and through the non-disclosure of sensitive and confidential material. It would be helpful if the Government could clarify whether charges left on file would mean that the proceedings had been determined. Will guidance be given on the scope of the binding effect of directions? Does a direction made by one court automatically bind all others; for example, if cases pass from the magistrates' courts to the Crown Court or from any court to an appellate court.

Media publications which fairly and accurately report proceedings in open court enjoy statutory and common law defences in defamation and contempt. The Defamation Act 1996 reaffirmed Parliament's support by extending the defence of absolute privilege. The Bill deprives the press of the benefit of such statutory defence in common law counterparts. We believe that the Bill should ensure that the press and public can hear and view live-link and video-recorded evidence at the same time as the jury as part of open court proceedings. Also, the public should have access to transcripts of evidence. That ought to be introduced.

If the public and press are excluded from the court, the statutory defences of the Contempt of Court Act and Defamation Act 1996 will not apply to media reports. That may mean that the press will be wary of reporting anything said by the witness, even if no reporting restrictions are made. That could mean that only the other party's case, including all other evidence which discredits the witness, without the witness's rebuttal, is fully reported. Presumably, that could act as a disincentive to the witness. Alternatively, because in the case of a party who called the witness, the proceedings cannot be reported fairly—for example, the alleged victim's version cannot be reported properly, and only that of the alleged perpetrator—the media may decide that it becomes impossible to produce a fair and accurate report of the proceedings as a whole and instead produce a brief report or no report at all.

Loss of opportunity to give evidence in public due to another's application will also prevent matters of importance reaching the public domain without threat of libel action. The effect of the restrictions might be lessened by ensuring that transcripts are available to the press, with an extension of appropriate defences to protect fair and accurate reporting of their contents.

I apologise for the rather lengthy explanation of the amendment, but the issues are extremely important. I also apologise to the Committee for the fact that I have strayed slightly beyond the rather narrow confines of the amendment. However, I gave the Minister's team notice of that. I realise that he will not necessarily be able to answer every question that I have asked this afternoon, but I hope that he will give me some reassurance on the principles and, if necessary, write to me on other points. I beg to move.

Lord Thomas of Gresford

In supporting these amendments, I must declare that as chairman of an independent radio company I have some responsibility for news gathering and broadcasting. The fundamental and basic principle is that there should be a fair and open trial subject to public scrutiny by the press and the public. From that base, one begins to consider restrictions on that principle.

My experience of being engaged in a lengthy trial in which screens were used to screen witnesses and part of the proceedings were heard in camera convinced me that only in the most exceptional cases should there be restrictions placed upon the press. In the particular case that I have in mind, the result was followed by damaging rumour and speculation in the press through to the culmination of the appeal processes. On reflection, it was not in the public interest that there should be restrictions of that kind.

The Bill deals with the protection of vulnerable and intimidated witnesses. Except in the most exceptional circumstances, those witnesses can be safely protected without preventing public scrutiny by the press and the media of what is said while they are giving evidence.

The proposal in Amendment No. 80A that, Representatives of the news media may not be excluded … unless the court specifically so decides", has the positive benefit that the court must give consideration to the issue before excluding the press from the court. I support these amendments.

Lord Williams of Mostyn

I am always grateful to have advice from the Guild of Editors. As I said earlier, one of my amendments resulted from its representations. We have a good record of paying careful attention to editors' interests and those of the broadcast media, as we can demonstrate by virtue of what was formerly Clause 31 of the Data Protection Bill and the amendment to the Human Rights Act, so welcomed by our colleagues in the press.

I entirely agree that it is not right to exclude the press from proceedings simply because they may be embarrassing to public figures. The noble Lord may be interested to know that I am meeting representatives of the print media in the next few days and, as always, I am happy to see representatives of the broadcast media. If there is any sensible way forward by way of amendment either to Clause 24 or to the other clauses with which the noble Viscount dealt—I do not chide him at all because he was developing a theme that concerns later provisions—I am more than ready, as always, to see whether we can safeguard all legitimate interests.

On the specific amendments, which have a much tighter function, the purpose of the screen or the use of the live link is to reduce stress. They save the witness from having to see the defendant. The screens can also be used to avoid sight lines from the public gallery. That is very important. Very often, the brute intimidation of witnesses, simply by people sitting in the public gallery, is extremely effective, even if they do nothing but sit there mob-handed. The use of neither the live link nor the screen is intended to prevent anyone in the court hearing the evidence; nor from seeing the witness if the court thinks that it is practical and desirable.

Clauses 22 and 23 provide a list of those participants who must be able to see as well as hear the witness, even if no one else can. That does not include the defendant—although the court may include the defendant—but it includes the judge, the magistrates, the jury (if there is one), and at least one legal representative for each party. We think it essential that they should be able to see the witness, to test the evidence and decide what weight to give it. We also think that an interpreter or intermediary, or anyone else recognised by the court as being there to assist or support the witness, should be able to be in eye contact with him or her.

These amendments seek to ensure that there should be a presumption that representatives of the media should be able to see the witness when a screen is used, and that they should have a right to be able to watch a witness giving evidence via a live link. It may well be desirable for the press to see as well as hear the witness giving evidence. Sometimes it will be possible, depending on the court layout and the nature of the equipment being used. They will always be able to hear what is being said.

However, I am not convinced at present that it is in the interests of justice that these clauses should specifically provide for the press. Court lay-out is very important. Obviously we have inherited an estate, which means that many courts are suitable while others are not as regards the flexibility that one needs. It may not be possible to arrange for the representatives of the media or the public to see the witness or the live link unless the facilities in the court permit this. It is not an easy question. I put this to the noble Viscount rhetorically—and I do not even invite him to write to me: would he be satisfied if representatives of the media were simply two in number, or do we have to have all the competing representatives of the media present?

I should point out to the Committee that news agencies are covered as representatives of the media. Magazine journalists and those writing books could be excluded because of the exclusion provision for members of the public.

Clause 24 may require the press to be excluded from the court while the witness's evidence is being given. However, that power can only be used where it is determined by the court both that a witness is eligible for "special measures" and that this particular measure is needed to improve the quality of evidence provided to the court, leading to the consequence that the court decides that a particular group or groups of people should be excluded from the court while the witness gives all or part of the evidence. That would be an exclusion for that part of the trial only.

Clause 24 is drafted with a reference to people rather than various galleries or parts of the court, like the public gallery or the press box. So the court does have flexibility to decide which groups of people should be excluded. It might be someone who was not a member of the family of the witness or of the defendant. In the case of a racial attack, it may be members of the public who have proclaimed themselves to be part of a racially motivated group; indeed, it could mean anyone other than members of the press. Alternatively, members of the press could be allowed to stay in the public gallery while others would be required to leave.

In certain circumstances—for example, in a distressing sexual case—the court may wish to exclude everyone, including the press, for that part of the evidence. The court may do so not to stop reporting but simply to allow the witness to give evidence in private without the presence of spectators. The court is already required to specify which people it wishes to exclude when making a direction under Clause 24. It will already have to consider whether this should or should not include the press.

If one looks at Clause 19(4), it will be seen that this encourages a considered decision because it provides that, special measures directions must specify particulars of the provision made by direction in respect of each special measure which is to apply to the witness's evidence". So there are significant safeguards against hasty or apparently ill-considered decisions.

I am not persuaded of the need for these amendments, although I recognise that what the noble Viscount and the noble Lord, Lord Thomas of Gresford, have been speaking about goes beyond the narrow confines of the amendments. They are contending on principle that justice ought to be published and ought to be capable of being reported. I certainly believe that to be a fundamental principle, though in some circumstances, which should be as limited as possible, there may have to be restrictions. Of course, there is at present a derogation from that principle.

I believe that a useful way forward is to indicate to the Committee that discussions have already taken place between representatives of the press and broadcast media and officials in the Home Office. From my memory, that was Wednesday of last week. Moreover, I have already arranged a further appointment with officials and representatives of the print media and myself within the next few days. I reiterate that I am perfectly happy, as always, to see representatives of the broadcast media again.

It is most important that we do not fetter the free press; but it is equally important that we pay careful attention to the needs of those who are vulnerable. My mind is open. I cannot guarantee that we will achieve a compromise that is satisfactory to those whom I regard as friends and colleagues in the press or, indeed, to the principles put forward by noble Lords. However, this is a useful marker. I recognise what the noble Viscount said; namely, that he was using these proceedings as an occasion—quite rightly—to develop a wider theme. I shall also pay careful attention to what he said on the wider themes. I hope that we can work together and bring something forward. I repeat: I actually believe in a free press.

7 p.m.

Viscount Astor

I am grateful to the Minister for his reply. I apologise to the Committee for straying slightly beyond the narrow confines of my amendment. Nevertheless, I am grateful to the Minister for dealing with that aspect. There are different issues about reporting restrictions with which we will deal when we come to Clauses 43 and 44. Indeed, having read carefully what the Minster said today, we on this side of the Committee will have to consider what amendments we wish to table in that respect.

Perhaps I may make a few points as regards the amendments now before us. I accept that there is a difference between what one might call the press and the public—indeed, perhaps what one might describe as the press and a hostile public. There is a difference between the two. As the Minister said, it may be desirable for the public gallery of a court to be closed because it is regarded as hostile to the witness due to the composition of those who are there. I do not necessarily believe that that means that members of the press should be excluded. One does not necessarily follow the other because there are different circumstances involved.

The Minister asked me rhetorically how many members of the press should be present and whether two would be enough. It is possible that two would be enough. As I am sure the Minister knows better than I, if, for example, members of the Press Association or a similar organisation are present, the transcript or the result of the proceedings are then available to the public at large and, indeed, to the rest of the press.

Lord Williams of Mostyn

I entirely take the noble Viscount's point. However, one could imagine a racially motivated case where the only representatives of the press were perhaps people from the National Front. It would not be a case of them being employed by the mainstream press, but they may be present on behalf of one of their wretched, pathetic little magazines. One has to work these things through quite carefully, probably in conversations of the sort that I mentioned.

Viscount Astor

I take the Minister's point. That is an issue which I believe ought to be considered by the Government and discussed by the Minister when he meets representatives of the press. As I said, I am grateful for the Minister's response However, I am not sure that he has gone far enough at present to satisfy my concerns.

Amendment No. 80A would put the onus on the court. It says: Representatives of the news media may not be excluded under subsection (1) unless the court specifically so decides". That is an important onus and it is one to which we shall return. I hope that the Minister will consider that proposition. I believe that it is important for the courts to have to go through a process whereby they do decide such matters—and I am grateful to the noble Lord, Lord Thomas of Gresford, for his support in that respect—rather than it being an automatic process that the press are normally excluded. We want the onus on the courts to make that decision on an individual basis. There is a danger that a kind of precedent will be set whereby it is normal for the press to be excluded.

The Minister generously said that he would talk to representatives of the press. I shall study carefully what he said this evening, and I hope that he will study my rather long introduction to the amendments. In the light of the Minister's response, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 22 agreed to.

Clause 23 [Evidence by live link]:

Viscount Astor moved Amendment No. 79B:

Page 18, line 23, at end insert— ("( ) Where a direction provides for the witness to give evidence by means of a live link, the court may give permission for a support person, who is not a party to the case, to be present with the witness.").

The noble Viscount said: I can be as brief with regard to this amendment as I was verbose on the previous amendment. This is a simple amendment. It provides for someone to be present to support a witness when the latter is giving evidence by live link. There may be people who need such help, whether they are children or elderly people. It is not the easiest process to give evidence by means of a live link, as anyone who has used teleconferencing will be aware. When I was a member of the government, I found that process incredibly difficult. I am not sure that it made life easier. It is a difficult process for people who are not used to it. I hope that the Minister will consider this amendment or a similar measure to enable a witness to have a support person present to enable him or her to feel less intimidated by the whole process. I beg to move.

Lord Williams of Mostyn

Speaking Up For Justice recommended this measure. As the noble Viscount indicated, it is important that a supporter should be a neutral person capable of giving moral support to a witness but not interfering with the evidence. The amendment is not necessary as supporters are already allowed to accompany witnesses in court, and in many courts may accompany them in a live link room. However, that practice is not universal. The Interdepartmental Steering Group on Child Evidence is considering the practice to try to achieve greater consistency across the country. That work will obviously be a useful basis for arrangements for supporters for adult witnesses. I hope that on that basis the noble Viscount will withdraw his amendment.

Viscount Astor

I am grateful for the noble Lord's comments. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 79C not moved.]

Clause 23 agreed to.

Clause 24 [Evidence given in private]:

Lord Rix moved Amendment No. 80:

Page 19, line 4, at end insert ("under section 16(1) or (2) or 17").

The noble Lord said: In moving Amendment No. 80 I wish to acknowledge the invaluable support yet again of the noble Lords, Lord Swinfen and Lord Dholakia. I have been most grateful for that support throughout the afternoon. I seek to make it clear through this amendment that the Bill gives people the opportunity to give evidence in private and that this measure will be available to people with learning disabilities and mental health problems as well as to those who are eligible for special measures on the ground of the fear of intimidation.

For many people with learning disabilities living in the community even minor instances of intimidation may have a major impact. Minor intimidation may reinforce the perpetrators' impressions of their power and a victim's comparative weakness and may even lead to more serious offences. The court should therefore take seriously the cumulative effect of verbal abuse and intimidation against witnesses who are considered vulnerable as a result of their disability. I beg to move.

Lord Swinfen

I wish briefly to support the amendment purely on the grounds that a number of people with a learning disability, and indeed those who have a mental illness, can easily be frightened by circumstances that will not worry the ordinary able-bodied person in the least. I am sure that the Minister when responding will say that people with disabilities have exactly the same rights under the Bill as anyone else. However, I hope that the courts will take into consideration the fact that sometimes these people are much more vulnerable.

7.15 p.m.

Lord Williams of Mostyn

I accept entirely what the noble Lord, Lord Swinfen, has said. In the context of Clause 24 a witness may be eligible for special measures because he is young, or disabled, or is distressed or frightened about testifying. He may be eligible because he fits all three categories. He may need one measure for one purpose and a second for another.

We would expect any application for special measures to specify in detail why a witness needs them and which special measures are needed. The court may accept the recommendations made. It may on the other hand wish to consider whether another measure, or combination of measures, may be more appropriate. It may indeed wish to offer a measure for which the applicant has not asked. We think it is important that an effort is made to provide no more and no less than the witness requires to give his best evidence.

Clause 24 provides for evidence to be given in private. It allows the court to ask anyone at the trial, apart from those such as the defendant who has to remain, to leave so that the witness can give best evidence in surroundings which are as quiet or as private or as considerate to the witness as possible. Some witnesses who are eligible for help under Clause 16 on the grounds of age, physical or mental impairment, or learning disability, may feel particularly inhibited by the difficulties of speaking in public. The noble Lord made that point. There is a range of measures available in the Bill to help them give best evidence.

The measures in Clause 24 will be open to such a witness or any witness who is eligible for special measures under Clause 17 if he is a witness in a sexual offence case or if the court thinks there are grounds for believing that someone other than the accused has intimidated, or is seeking to intimidate, the witness in relation to testifying. I refer to Clause 24(3) in this regard.

The provisions of Clause 18(1)(a) and (b) make it perfectly clear that the measures in Clause 24 are available to witnesses who are eligible for special measures under Clause 16 or Clause 17, or both. However, clearing a court should not be undertaken lightly. Wherever possible evidence should be given in public. The principle of open justice is an important one. Experience in overseas jurisdictions at this time is a useful reminder to us of that principle. We therefore believe that the measure should be used only in the limited, constrained circumstances set out in the Bill.

Lord Rix

My amendment was intended as a belt-and-braces measure to ensure that Clause 16 is, as it were, referred to from Clause 24. However, with the assurances of the Minister that Clause 16 is covered under Clause 24, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 80A not moved.]

Clause 24 agreed to.

Clause 25 agreed to.

Clause 26 [Video recorded evidence in chief]:

Lord Thomas of Gresford moved Amendment No. 81:

Page 19, line 8, leave out first ("the witness") and insert ("a witness who is eligible by virtue of section 16(1)").

The noble Lord said: The purpose of this amendment is to ensure that the video recording of an interview of a witness should be available only when the witness fulfils the requirements of Clause 16(1); namely, that he or she is under the age of 17 at the time of the hearing, or he or she is affected by mental disorder or significant impairment of intelligence and social functioning. As drafted, the provision in Clause 26 would permit that a video recording of an interview of any witness for whom special measures had been granted could be admitted as evidence in chief.

I agree with what was said by the noble Lord, Lord Williams of Mostyn, when replying to an earlier amendment; namely, that children have different needs and different capabilities. There is some sense in having their initial interview shortly after they have lodged a complaint recorded and presented in court as the evidence in chief. Their memory is fresh. It further has the benefit that, in giving their full account of what has occurred and before cross-examination, they can do so in the court proceedings without having to be examined in chief. Under the present provisions, children are subjected to cross-examination by means of a live video link. We shall discuss later whether it is advantageous and fair that they should be cross-examined at an earlier stage and that their cross-examination should be filmed.

The provisions in Clause 26(1) relating to all witnesses tip the balance too far against the defendant. It is just the same as the witness coming into court, being provided with a statement of complaint that he or she made at the time and simply reading it out. That is something that we have always prevented in our courts. A contemporaneous statement may be used to refresh the memory, but not as the evidence in chief. If one permits this provision into the proceedings, one is in effect permitting any witness, so long as he or she comes within the provisions of Clause 17, to have that benefit.

Subsection (5)(a) opens the position even further. Although the witness must be called by the party tendering the interview in evidence, the special measures direction may provide that the witness's evidence on cross-examination be given otherwise than by a testimony in court. Again, that is an unacceptable widening of the situation. In trying to preserve the balance between the complainant and the defendant and ensuring that the trial is fair, open and just, these provisions take the matter too far.

Lord Williams of Mostyn

The point of this amendment is to restrict the admissibility of video recorded evidence in chief, and therefore video recorded cross-examination, to videos of child witnesses and witnesses with mental disorder or physical and learning disabilities. We believe that that restriction is too harsh if we are genuinely engaged upon a search for the best evidence to be placed before a court.

The Bill offers a wider discretion to admit video evidence, and a stronger presumption that it should be admitted for children than is provided at present. The Bill as presently drafted will allow us to have evidence in chief and video recorded cross-examination arranged according to a timetable for a vulnerable witness who is outside the category that I specified and the noble Lord, Lord Thomas of Gresford, indicated.

The Bill as presently drafted will make it possible to admit video recorded evidence, both evidence in chief and on cross-examination, of witnesses for whom "audience" intimidation at trial is considered by the court to be a critical deterrent from giving the best evidence. It is this last provision that the amendment seeks to remove.

There is a case, if it is carefully and cautiously approached, for keeping nervous witnesses out of court and allowing them to give their evidence in a more relaxed way. We need to bear in mind that for witnesses intimidated by threats or fear of violence the law already allows the written statements of absent witnesses to be placed before the court, or for a witness to be granted absolute anonymity in court.

We do not want to go that far in this provision. We are simply offering the courts a discretion to make a direction that video recorded evidence of a witness should be admitted, and therefore be admissible, where the court is persuaded that the measure is needed to put important evidence before the court. We do not expect directions to be made simply to save the witness embarrassment or shame unless it is truly debilitating. To qualify for this provision, the witness must be so distressed or frightened that his or her ability to give evidence will be affected. I repeat: such witnesses can give evidence at present by way of written statement. I should have thought that that is a good deal less satisfactory than video evidence in chief and cross-examination. I should expect it to be difficult to convince a court to admit video recorded evidence in cases involving frightened witnesses rather than directing that another measure should be used. It should be difficult. It is not an open invitation for all witnesses to give their evidence on video.

The party calling the witness will have to consider whether the witness's evidence would make more impact when given live at trial, whether by live television link or in the courtroom itself. But where the court is capable of being convinced that the measure would offer proper benefits for the witness, and therefore the best evidence, the court—this is all that we say—should have the discretion to award it.

Lord Cope of Berkeley

If video recordings are to be admitted as evidence in chief, sometimes they will have been taken by police officers and others in the earlier stages of the investigation. I wonder, therefore, whether those police officers and others will need special training to make sure that interviews are conducted in accordance with the normal rules of court and not simply as an investigation might otherwise proceed. A police officer interviewing a witness in the course of an investigation will not normally follow all the intricacies that are required in court. If he has this provision in mind, he will need to do that. That will involve considerable training, and so on. I note from the Financial Memorandum to the Bill that it is expected to cost the Crown Prosecution Service some £0.7 million a year to admit video recorded evidence in chief. It may be that part of that amount is intended for training, at least so far as the CPS is concerned. However, the training will be more important for police officers and others in the circumstances I have described.

Lord Thomas of Gresford

I am heartened by some of the Minister's remarks. He said that it would be in exceptional circumstances that the interview of a witness would be admitted as evidence in chief. Nevertheless, I am not entirely satisfied with his reply. It seems to me that there is a great distinction between a child—a child can be identified as one who requires evidence to be given in this way in court and therefore an interview can be conducted right at the very beginning with all the proper safeguards in place—and any other adult competent witness. It may not be until much later that the question of the competence of that witness, or the quality of the evidence being affected by fear and distress, becomes an issue at all. If at that point, some months later, one then returns to an interview that the police conducted by way of a video recording, I should have thought that in the case of adults the safeguards referred to by the noble Lord, Lord Cope, will not be in place. I beg leave to withdraw the amendment, but I shall return to the matter again.

Amendment, by leave, withdrawn.

Lord Hoyle

I beg to move that the House do now resume. In moving this Motion, I suggest that the Committee stage begin again not before 8.30 p.m.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.