§ House again in Committee on Clause 26.
§ Viscount Colville of Culross moved Amendment No. 82:
§ Page 19, line 15, leave out subsection (3) and insert—
§ ("(3) In considering for the purposes of subsection (2) of this section or subsection (1) or (2) of section 27 whether any part of a recording should not be admitted under these sections, the court may refuse to allow evidence on which any party proposes to rely if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.").
§ The noble Viscount said: I apologise to the Committee for introducing this topic immediately after an admirable repast. This matter is difficult and complicated but I hasten to assure the Minister that I seek clarification and do not intend to press this collection of verbiage to a Division. Perhaps I may explain the problem that I identify with these provisions. Clause 26 deals with evidence in chief to be used in a wider variety of cases than originally provided for which 1364 was only in relation to children. When a video recording of evidence in chief is prepared it is done by means of an interview by people who have very special training. There is a great deal of guidance and manuals and so on are produced to enable this to be done according to a code.
§ Nevertheless, on occasions it goes wrong. A judge in the Crown Court where these matters mainly occur has a discretion whereby evidence that would otherwise be admissible is excluded on the grounds that it is unfair to allow it to be put before the jury. There are a number of different principles whereby evidence may be so excluded. That the principles should be clear is of enormous importance. It has been said this afternoon that it is not very easy to get convictions in some cases where there is abuse of vulnerable people. It is not for me to say whether or not people should be convicted, but the judiciary certainly should not be hampered by any lack of clarity as to what is its job. If there is an application by either party for evidence to be excluded on the ground that it is unfair the judge must apply the correct principles. If he or she does not do so and there is a conviction it will be overturned by the Court of Appeal because the principles on which the decision has been reached by the judge are wrong. The fundamental issue therefore is to get the principles right.
§ In common law a criminal judge always had the ability to exclude evidence which would otherwise be admissible on the grounds that it was unfair. In the Police and Criminal Evidence Act two provisions were added to the existing law: one was Section 78 in the terms that I have set out, broadly speaking, in my amendment; the other was Section 82(3) which preserved in so far as it was still required—sometimes it was—the old common law position. That was in 1984. On the basis of Section 78 a very great deal of judicial guidance has been built up in cases before the Court of Appeal. One can refer to quite a large book if this matter arises. All of these cases are individual and one cannot discern a direct precedent but one has the principles and seeks to get the matter right.
§ When the idea of the video recording of testimony by child witnesses was introduced in the Criminal Justice Act 1991 a new set of provisions was grafted on to the Criminal Justice Act 1988. It took the form of a number of amendments to Section 32 of that Act: the addition of Section 32A and a number of other matters. Section 32A is to be repealed by Schedule 4, as one sees from the top of page 60, as is a good deal of Section 32.
§ When I raised this matter on Second Reading, however, the noble Lord, Lord Williams, said that I should take comfort from the fact that in Clause 26 of the Bill the test as to a judge's exercise of discretion on admissibility was the same as that found in Section 32A(4), as it is now, of the Criminal Justice Act 1988. Broadly speaking, that is true. In Clause 26 one finds a very similar provision in subsections (2) and (3).
§ There are, however, very substantial differences. In Section 32A(3) of the 1988 Act, as inserted in 1991, the power to exclude evidence was made subject to the exercise of any power of the court to exclude evidence 1365 which would otherwise be admissible. In other words, as I read it, it was subject to the provisions of the Police and Criminal Evidence Act referred to earlier. There is no repetition of that saving in Clause 26 of the Bill.
§ Unfortunately, it does not stop there. Clause 26 of the Bill, together with the repeal provisions, effectively takes the place of Section 32A of the 1988 Act as inserted in 1991. If it is amended so as to accord with the provisions of the 1991 Act that may be adequate for the provision of evidence in chief. Unfortunately, nothing has been provided by way of principles for the exercise of a judge's discretion in relation to evidence that may be video-recorded under Clause 27. There is no cross-reference between Clause 26(2) and (3) and the provisions for cross-examination and re-examination to be video-recorded and presented to the court under Clause 27.
§ As the position now stands—I am aware that there are Members of the Committee who are extremely familiar with the situation and will put me right if I am wrong—even with child witnesses there may be a contest as to the admissibility of some parts of the video-recorded evidence in chief. For instance, during one of the breaks which are allowed to take place in the course of the video recording the child may go out, and the other party (usually the defence) says that during that period the child was coached. The child comes back, continues the video recordings and produces all the necessary information and evidence about the offence with which the court is concerned. There is objection about what happened during the gap and one has to hear evidence about it.
§ That situation will continue to occur. The Bill has simplified the tests for the Crown Court judge. It has made them different from those under the Police and Criminal Evidence Act. I do not know what they are supposed to be. However, there is now the proposition that cross-examination and re-examination should be on video as well, and a further problem arises. There is no reference in the Bill about the principles for admissibility of evidence and fairness. In the course of cross-examination there is often a pause because the attention span of the witness may be brief. There has to be a short adjournment. There is an allegation that the witness was coached. As a result there may be a challenge as to the admissibility of what happened thereafter.
§ Furthermore, there is provision in Clause 27(5) and (6) for the recall of a witness in certain circumstances even after cross-examination and re-examination. It can occur only on the basis that some new material has come to the notice of the defence, and it therefore wishes to recall that witness. At that moment—I speculate because no one knows how the provision will work—some part of the pre-recorded video of the cross-examination may come under challenge. Some additional evidence may throw doubt upon the safety of allowing the material to go before the jury. Nothing in the Bill states the principles which the judge has to apply.
§ As I read the Bill, the judge has to apply to examination in chief the principles derived from Clause 26 alone without paying attention to Sections 78 or 82(3) of the 1366 Police and Criminal Evidence Act. For the purpose of admissibility of cross-examination or re-examination there is no guide. Presumably one goes back to the terms of the Police and Criminal Evidence Act. If that is so, there is a different test. The words are different as regards the principles that the judge has to take into account now and those which will apply to examination in chief, cross-examination and re-examination in the future.
§ I seriously doubt that I have the position right. I cannot believe that the noble Lord, Lord Williams, would present a Bill to Parliament which does not clarify that situation. The amendment merely reproduces the formula in Section 78 in the hope that we might have a constant provision throughout the jurisdiction. In the hope that we shall have an explanation of how the provision is to work, I beg to move.
§ Lord Thomas of Gresford
I support the amendment put forward by the noble Viscount. I cannot attempt to match his analysis of the interplay between Sections 26 and 27. However, when admissibility of evidence in a criminal trial is being considered by a judge it is clearly desirable that he applies one test. For him to have to turn from one statutory provision to another in order to determine the correct test is unacceptable and confusing. If there is to be a different test, it is a matter that will trouble the Court of Appeal. We are familiar with the test set out in the noble Viscount's amendment from Section 78 of the Police and Criminal Evidence Act. It is frequently before the court and frequently in the minds of judges. It is obviously the correct test. I invite the comments of the Minister on the amendment.
§ 8.45 p.m.
§ Lord Williams of Mostyn
As currently drafted, Clause 26(3) of the Bill is based on the test for admissibility of video evidence which already is to be found, as the noble Viscount correctly points out, in Section 32A of the Criminal Justice Act 1988. That test required the judge to balance the possibility of the jury being prejudiced against the defendant by a part of the recording with the desirability of showing the whole recording intact so that there is in fact a complete picture of the witness's evidence.
It was developed for the specific circumstance of video recordings. The court might consider, for instance, that the recording shows an exchange between questioner and witness which the rules of evidence would exclude but which could be edited out without damage to the rest of the recording being used in evidence. Alternatively, the court might prefer—indeed, the defence might wish it—to allow the whole recording to be shown and the jury warned that it should have regard to the prejudicial nature of the question and the consequential answer.
Section 78 of PACE is intended for evidence in general. It is not adapted to the specific question of video-recorded evidence. I am not sure that the noble Viscount's amendment explicitly provides for the possibility of part of the recording being excluded while the rest was admitted.
1367 I do not think that the test will be confusing for judges. It is substantially the same as is already used under Section 32A of the 1988 Act. The amendment would also extend the reach of the new subsection (3) to the editing of video-recorded cross-examination. We need to remember that the cross-examination will have been controlled by a judge with all the parties to the case present. We believe that anything prejudicial to the defendant should have been stopped at the time of that hearing. However, subsection (4) of Clause 27 allows a video recording of a cross-examination to be excluded after it has been made if the rules of court or the direction allowing the cross-examination have not been complied with. We think that they are sufficient safeguards.
I turn to Section 78 and Section 82(3) of PACE since both sections were mentioned by the noble Viscount. Section 82(3) of PACE preserves the common law power of the court to exclude any evidence at its discretion. Neither that nor Section 78 of PACE overrides Section 26(3), which is simply specific additional provision on the admissibility of video evidence under Section 26. On the basis of the advice I have received, it seems to me that Section 78 continues as a general provision enabling the courts to refuse to allow any evidence on which the prosecution proposes to rely, subject to the question—it is what Section 78 is supposed to preserve—of the overall fairness of the proceedings.
Section 78 applies to all evidence, as we can see from the case of R v. Mason, Vol. 86 Criminal Appeal Reports. It is not limited, as used to be thought, to the admissibility of confessions. There is no reason to think that Section 78 does not apply to prosecution evidence under Clause 26. I do not believe therefore that the amendment is necessary as regards prosecution evidence.
We are dealing with new bases of admissibility of types of evidence because we are applying it further to what has been known in the past.
I know that the noble Viscount has gone to a good deal of trouble in relating Clauses 26 and 27, to Sections 78 and 82(3) of PACE and the various possible differences of nuance that there might be to the judicial approach. Therefore, whether or not the noble Viscount intends to press the amendment—he indicated that he was probing—I wish to give a certain amount of thought to the inter-relationship between Clauses 26 and 27 of the Bill with Sections 78 and 82(3) of PACE. I agree entirely with the noble Viscount that one wants to put one's mind to these inter-relationships and to consider, and reconsider for my part, whether there may be some fudging of the different criteria that ought to be applied under the respective clauses. I undertake to do that. I shall write to the noble Viscount and to the noble Lord, Lord Thomas, and those Members of Committee who have shown an interest. I shall also put a copy of my reply in the Library.
Not for the first time, the issues raised by the noble Viscount are certainly well worthy of further consideration and I undertake to give them that.
§ Lord Cope of Berkeley
I apologise at once for intruding in such an erudite debate. As a layman in these matters, what concerns me is whether it would be 1368 possible for the Minister to put on one sheet of paper the considerations which the judge will have to take into account in deciding whether to admit video recorded evidence in chief in a case such as this. If that is difficult to do—judging by the discussion we have just had it is quite difficult—it seems to me that it would be very difficult for police officers and other people involved in interviewing child witnesses and others in the course of an investigation to get it right in a manner which will stand up in court. It is not only learned judges and counsel who will have to be able to follow the rules, whatever they are in the end, but other people with much less expertise, who will need to be able to follow and obey the rules in order to be successful in producing evidence in chief which can be used and lead to the correct decision in the court.
§ Lord Williams of Mostyn
Perhaps I may respond quite briefly to the noble Lord, Lord Cope. As the noble Viscount pointed out, we have had the video recording of interviews with children for almost 10 years. As he rightly pointed out, there is a memorandum of good practice and the training of police officers in the taking of statements. I understand that the noble Viscount's question is not really directed at the obtaining of material but dealing with it in its judicial context either in the magistrates' court, or as he rightly said, more likely in the Crown Court.
That is the question to which his observations and interventions have been addressed and on which I have focused my mind. It may be that at the end of the day I shall simply come back and say that I believe Clause 26(3) and the present Clause 27 are sufficient. But I believe that he has raised perfectly legitimate queries about the inter-relationship between at least four clauses. I undertake to think more carefully about it, even if I come to the same conclusion, and to write appropriately as I promised.
§ Lord Rix
Before the noble Lord sits down, perhaps I may ask two questions. In the giving of evidence children are mentioned all the time. I presume that the safeguards in taking evidence apply equally as much to people with a learning disability. The second question may be rather naïve. If the editing of evidence is allowed, who is going to be present from the court to ensure that it is conducted in a true and proper manner?
§ Lord Williams of Mostyn
Again, I want to be as helpful as I can. The reason I mentioned training over the past 10 years and the memorandum of good practice, is that it has been in the context of children's evidence. But the lessons we have learnt from that good practice will be applied to those who have a disability. As regards editing, that takes place in a court context because the judge makes a ruling that certain questions and answers should not be allowed. That is one stage. The taking of cross-examination is subject to judicial control as well. So if one means editing physically, that can be done by a direction from the judge in the Crown Court context, but if one means editing in the form of, 1369 "You must not answer that question", which is a slightly broader use of editing, that is judicial control of the cross-examination itself.
Viscount Colville of Culross
I am grateful to those who have taken part in this debate, particularly if they understood what I was trying to say because it is not very easy. I thank the noble Lord, Lord Williams, very much for his offer to look at this matter again.
I wish to make three brief points. If he is right that Clause 26 is to be governed overall by the tests and principles in Sections 78 and 82(3) of the Police and Criminal Evidence Act, why does not the clause contain the same saving that is in the section which includes the proviso of being subject to the exercise of any power of the court to exclude evidence which is otherwise admissible? That is the cross-reference in that provision to the Police and Criminal Evidence Act. If the Minister is right in that those provisions override, why is it not in the Bill?
The noble Lord, Lord Rix, was quite right in saying that the video-recording of cross-examination and re-examination of any witness will be of a wider range than just children. There is no real safeguard in Clause 27(4) because the rules of court for these purposes, if they are like the rules that we have had before, simply deal with the number of days to transpire before the second stage is taken. The directions will have been given before the event and are unlikely to be the cause of the trouble. I believe the noble Lord will understand that the whole process involved in Clause 27 is organic, it is something added to the law and system that we have now. There is the ability to re-open the cross-examination, as I have mentioned previously.
None of this is foreseeable. The way in which challenges as to admissibility are going to occur is unknown at the moment. Without any clear guidelines in the Bill itself, I doubt whether it will be easy for judges to get it right. Therefore, I very much welcome the fact that the noble Lord will look at this again. I am sure that he will not come to it with any preconceptions that the Bill must be right. I am asking for absolute clarity so that in dealing with these matters the judiciary does not make a mistake on its part. Whatever else may go wrong with the trial, at least the judiciary will have clear guidance about what it is to do and the principles it has to apply. I welcome what the Minister has said. I look forward to his letter and a further discussion with him when I have received it. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 26 agreed to.
§ Clause 27 [Video recorded cross-examination or re-examination]:
§ Viscount Colville of Culross moved Amendment No. 83:
§ Page 20, line 40, after ("both)") insert ("who is (or are) to have conduct of the trial or appeal").
§ The noble Viscount said: In the light of what the noble Lord, Lord Williams, said a few moments ago, I suspect that this amendment is not strictly necessary. In 1370 either the Explanatory Notes or Speaking Up For Justice there is a suggestion that cross-examination and re-examination on video of witnesses who are to be given the protection of special measures should not necessarily be controlled by the magistrate or the judge. That is a disastrous suggestion to make. If there is one thing that has been learnt from the experience of video recorded evidence in chief and the cross-examination of a child witness—which is all that we have had so far—on the live link, it is that there has to be very close control indeed.
§ There is the inevitable tendency for cross-examining counsel to cover a point for longer than is necessary. He may not remember that a child's attention span is not very long. He may not allow time for a pause, certainly not for coaching but so that the child may have a short break in the proceedings for reflection. There are many reasons why it is necessary to have judicial control over the cross-examination and re-examination. Those who have taken part in trials will know that that is right and if properly exercised, it enhances the quality of evidence which witnesses give.
§ Therefore, I thought it worthwhile to make sure that the policy indicated in whichever of those documents it was, is not to be put into practice when the Bill comes into force. I seek an assurance from the noble Lord that that will not be the case.
§ That will be particularly important if there is a risk that cross-examination may continue by way of a recall under Clause 27. It must be right the first time because the defence will not have another opportunity unless it has new material of which it could not reasonably have had knowledge at the time. Therefore, close judicial control over those proceedings is necessary. I look forward to an assurance from the noble Lord that that is exactly what is intended. I beg to move.
§ 9 p.m.
§ Lord Cope of Berkeley
I noticed an interesting difference between this provision—particularly if it were to be amended in the way suggested by the noble Viscount—and the position in Scotland. In Scotland, as I read it, if there is to be separate giving of evidence by vulnerable witnesses, including children, the evidence is taken by a legally qualified commissioner appointed by the court and acting for the court. I wonder whether the Home Office has considered that possibility for England and Wales or whether it did not regard it as working very satisfactorily in Scotland. However, I have no real evidence to suggest that it is anything other than satisfactory in its operation North of the Border.
§ Lord Williams of Mostyn
I am grateful to the noble Viscount for raising this issue. I assure him that we should absolutely prefer the same judge or justices who has or have heard an application for special measures as part of a pre-trial hearing to control interim proceedings such as the video-recorded cross-examination; and who would then take the case at trial. I am quite certain that the Court Service, the judiciary and the magistracy will make every effort to ensure that that is so.
1371 As the noble Viscount pointed out, that provides consistency for parties and the witness. Explanations to the jury in due course about the video-recorded evidence may well be fuller, more explanatory and, perhaps, better informed if the same person or persons control proceedings throughout. For a vulnerable witness, a familiar face is important.
But we must recognise that it will not always be practicable if we are to avoid unnecessary delay. Unnecessary delay is a significant feature of the damage that is done to children or other vulnerable witnesses. Therefore, I am happy to give that indication as firmly as I may to the noble Viscount.
I do not believe that such an absolute rule as he proposes is necessarily in the interests of justice for the defendant. Delay is often a blemish from the defendant's point of view too. The identity of the judge or justices who control the trial ultimately is perhaps not as important, but we wish to have continuity as far as we can possibly attain it.
The noble Lord, Lord Cope of Berkeley, asked me about taking evidence on commission. I had jotted down something about that earlier. There are sometimes difficulties about taking evidence on commission. Sometimes, the commissioner has not the authority to rule out inadmissible material. In the circumstances of our new experience, it is probably better to have the evidence controlled judicially for all the reasons which the noble Viscount gave. I am happy to give that clear indication—I do not believe I could have made it plainer—in response to the noble Viscount's question.
Viscount Colville of Culross
The noble Lord has made it very clear. It is quite right that it would not be possible to statutorily require the same judge or justices necessarily to sit at all stages. Nevertheless, the Minister has given the principle which I am sure will now be followed. He has forsworn what was in that previous document. I am extremely happy with the situation and I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ On Question, Whether Clause 27 shall stand part of the Bill?
Viscount Colville of Culross
At this stage, I wish to refer to the practicality and usefulness of Clause 27. It may be that other Members of the Committee will be able to make better contributions about this matter. However, we should examine the issue.
I am wholly in favour of the video recording of cross-examination and re-examination, particularly if there are not to be later recalls when the defence has eventually decided exactly what it is that it wishes to present to the court.
However, I wish to make certain that the introduction of that provision on to the statute book does not raise false hopes. I said at Second Reading—and I believe that the noble Lord, Lord Williams, has confirmed it—that since the Pigot Report suggested the whole of this procedure, there has been the intervention of the Criminal Procedure and Investigations Act 1996 which sets out a statutory progression of primary disclosure, 1372 defence statement and secondary disclosure leading to the preparations for the trial. That is an admirable arrangement but it takes time.
Time is not on the side of obtaining real and reliable evidence from the kind of people for whom special measures are required. The noble Lord, Lord Rix, will know better than I about some of the people with various other disabilities. But I know that the memory of children is very short. Three may be a delay of six to nine months between the time when the alleged offence occurred and the time when the children are asked questions about it, having first, in rather unfamiliar circumstances, seen the video recording of their own evidence-in-chief. They are then asked questions about it. They have great difficulty remembering what happened and being able to explain, in answer to questions, what occurred. They take refuge in saying that the incident happened a long time ago and they have forgotten. Consequently, their evidence is not as reliable or helpful as it should be to the jury or anyone else.
I am concerned about the timetable and the facilities and my Amendment No. 84 is relevant to that. My Amendment No. 135 repeals the special provision about facilities for video recordings for petty sessional divisions. If no facility is available in a magistrates' courts area another facility can be used somewhere else. The noble Lord, Lord Williams, mentioned that earlier, saying that there are sufficient venues for video recordings for all these proceedings. If that is the case, why repeal Section 32 which makes specific provision for that?
Whether or not there are sufficient venues, what is the timetable to be? How is justice to be improved by the provisions in Clause 27? I would guess that the defence would never be ready to cross-examine, certainly not without the risk of a further recall of the witness later on, until all the secondary disclosures have been made, the defence witnesses collected, statements taken by the defence solicitor and all that has been considered by defence counsel. Unless there is a speeding up of the process over and above what happens in the Crown Courts—certainly in my experience, and mine was one of the pilot courts in the video-recording process—children and other witnesses under a disability will be cross-examined on video months and months after the event. I seriously doubt whether that will be an improvement on the current situation in which they are cross-examined in court on the video-link, not subject to further recall as the Bill provides, their evidence standing or falling as they come across on the day.
I hope that the noble Lord, Lord Williams, will say that something special is to be done about such a case because the essence is speed. If speed is not introduced into the proceedings, I fear that all the admirable aspirations set out in Clause 27 will come to nothing and that hopes will be falsely raised and dashed when it is seen not to work. I look forward to his explanation of what is to be done to make the proposal effective and quick and being told that we shall take the opportunity of getting the evidence before the jury on videotape when the witness can remember what happened.
§ Baroness Mallalieu
Although I do not support any attempt to take Clause 27 out of the Bill, I express concerns about its practical effect. The ideal is to have a cross-examination following directly on from the evidence-in-chief and as near as possible to the time of the first complaint. The reality is that it will be a slow process to amass the necessary material for cross-examination, which in many cases may involve additional applications to the court for disclosure. In cases involving children, particularly those who have a relationship with local care authorities, it is not unusual for there to be applications for the disclosure of social services records, which often do not become available until shortly before trial.
I am troubled that attempts may be made to use the provision as a norm, or at any rate regularly, when at later stages it will be impossible for a judge to refuse an application to recall the child for further cross-examination because material has come to light which could not have been in the hands of the defence earlier. The end result may be that the child undergoes two periods of cross-examination rather than one. I would like the Minister to indicate whether he sees the provisions as being "the norm" or whether they will apply only in relatively exceptional circumstances where all the material is available and no further material is anticipated to be forthcoming.
§ Baroness Carnegy of Lour
From a lay person's point of view, all these complications that will prolong the process are not particularly easy to understand, but the point is that for a child this is absolutely impossible. The National Society for the Prevention of Cruelty to Children tells us that now the average length of time for a trial involving cases such as this is 10 months. That is the average, and for many it is longer. They say that it looks as though under this new process things will get worse. I think the noble Viscount has suggested that.
Childline have written to me to say that they get much involved with children in this kind of thing and that speed is of the essence in these cases. They are appalled at the thought of a long process. It just will not work, and even if it is the exception, as the noble Baroness, Lady Mallalieu, suggested it might be, what about those children who are the exceptions? I do not think it will do. Even if it means going back to the drawing board on this matter, I think we should do so, because anyone who understands anything about children will realise that they will not be able to give proper evidence. I do hope that the noble Lord, the Minister, is going to look at this very hard indeed.
§ 9.15 p.m.
§ Lord Warner
I believe that the noble Viscount is right. Time is of the essence in relation to children's memories and the recall of events. I think we need to just remember the linkages between Clause 27 and Clause 21. There is in fact very little point, I would 1374 suggest, in making it easier for the video-taping of evidence in chief to be used in cases, particularly of sexual abuse of children, if we do not then follow through in terms of cross-examination and re-examination, using the same video-taping. If we do not follow through, we end up with the situation we have had over the last few years in the courts, with the absence of this facility to use video-taping being a real deterrent to the successful prosecution of people who have abused children.
If we only go through part of the process in which we actually have evidence in chief video-taped but we cannot video-tape the cross-examination and re-examination, all we shall end up with is a situation in which there is a real deterrent to prosecution because children will not come forward. It seems to me that we have to re-examine the way in which the court processes are working and in these particular cases we have to use our best endeavours to speed up the process and recognise the circumstances of the children involved in these cases.
§ Lord Cope of Berkeley
There seem to be two matters here. The first is the one which caused me to add my name to that of the noble Viscount so as to cause a debate on the Question that Clause 27 stand part. I refer to the difficulty of having the cross-examination outside the trial—in some cases well outside the trial in point of time, it seems—when the defence will not really be in a proper position to cross-examine as it would be by the time of the trial, having much more information, much more disclosure and all the rest of it.
It seems to me that it is extremely difficult to have a cross-examination taking place a long time before the trial takes place. This point was made to me by the Law Society and others. But that runs across the point which has also been raised in this most interesting little debate about the question of time that elapses between the offence and its coming to court. Like my noble friend, I have seen the suggestion that at the moment in child witness cases there is an average of 10 months—I repeat, an average—so presumably in some cases it must be quite a lot longer.
It has been my observation that one's appreciation of any span of time is actually not absolute as life proceeds, but it is a function of one's age. When you are 10 one year is 10 per cent. but when you are 60, 10 per cent. is six years. In a sense, the youngster who looks forward to Christmas at any point in the year sees it as being much further away than one does at 60, when it seems that Christmases come round very quickly one after the other. That is just an indication of the difficulties of taking evidence from children 10 months, let alone much more, afterwards.
That runs counter to the problems of having the cross-examination outside the trial. I do not see how to resolve those problems. I take the point made by the noble Lord, Lord Warner, that to separate the evidence-in-chief from cross-examination is also very difficult and could make one or the other less valid. It could actually make the evidence-in-chief less valid if the cross-examination is a long time after it; one should try and keep them together. The only answer is to speed 1375 up the trials. I know that a great deal of effort has gone into trying to speed up trials in recent years and, though there has been some beneficial effect, there is still considerable delay. So the Government are struggling with very great dilemmas on behalf of us all.
§ Lord Thomas of Gresford
It is impossible for cross-examination to follow immediately after the interview under Section 26. It should be borne in mind that Section 26 deals with the provision,for a video recording of an interview of the witness to be admitted as evidence in chief".It would be impossible to cross-examine any such witness without taking instructions. That requires that the video recording be made available to the defence and that time be provided for a proper conference or consultation to take place before the arrangements can be made for the cross-examination and re-examination of the witness to happen.
The Committee should not be left with the impression that it is possible to have a witness interviewed and on the same day for that witness to be cross-examined by counsel in full possession of his instructions. If that were to happen, if that is the intention of these provisions, it is almost inevitable that at a later stage the witness would be recalled to give evidence and subject himself or herself to further cross-examination.
A further point that has to be made is this: the Committee has addressed these provisions almost as though they were concerned solely with the sexual abuse of children. That is not the case. These are broad and wide provisions. I have not pressed my amendment to Clause 26(1) to confine "the witness" to a witness as described in Section 16(1); namely, a witness under the age of 17 or subject to some disability. Therefore these provisions apply to any witness where the court is satisfied that the quality of that witness's evidence is likely to be diminished by the reason of fear or distress. That can be any adult witness and is not confined to sexual abuse; it can extend to any criminal proceedings.
For example, I had the experience of dealing with a murder case in which the deceased was subject to a severe disability, as was the defendant and around half a dozen of the witnesses; they were all subject to disability. These provisions, therefore, could apply in a murder case. And one can easily imagine a fraud case where the critical and crucial witness was in such fear and distress of what might happen to him or her when the matter comes to the attention of those further up the chain of criminality that he or she might come within these provisions. The provisions could therefore apply to a fraud case.
It is virtually impossible to cross-examine a critical witness in a fraud case without primary and secondary disclosure taking place. So let us not confine ourselves to the sexual abuse of children in considering how broad these provisions are. I have attempted to confine them to children and those who are disabled but that has not so far been successful. Therefore one has to look at the implications on a much wider basis.
§ Lord Swinfen
I am not experienced in these matters but I wonder whether the Minister can instruct me. Am 1376 I right in thinking that much of the evidence that will be given by a child—and perhaps others—will be taken by the police during their investigations, even before a defendant has been found, and that those interviews will be used in court as evidence? In those circumstances, there will have been no chance for the defendant's counsel even to have been appointed, so that evidence could not be questioned in the very early stages. It could be months before a defending counsel is appointed. As the evidence has to be fresh in a child's mind to ensure that it is correct, it is taken in the course of police inquiries before a court case is even contemplated.
§ Lord Williams of Mostyn
The noble Lord is quite right: as the noble Lord, Lord Thomas of Gresford, rightly reminded us, Clause 27 refers to video-recordings of interviews of witnesses. If the accused is not apprehended for some time, in the nature of things, there cannot be a virtually contemporaneous cross-examination. As the noble Lord, Lord Thomas of Gresford, again rightly pointed out, you cannot cross-examine properly and professionally until you have instructions and, as the noble Viscount again rightly pointed out, you cannot cross-examine efficiently and professionally until you have had disclosure in some cases.
I see the noble Lord, Lord Lester of Herne Hill, in his place. When I say, "What about this, that or the other?", he frequently chides me with the doctrine of unripe time. I have always been amused by that. Your Lordships are now saying, "In some cases it may be difficult, so let us, therefore, do nothing in any circumstance where it might be of assistance to a child or a witness under disability".
Unless we start, we shall get nowhere. Of course, there will be some difficulties. Of course, the inertia of the judicial machine will continue. Apparently, to the outside observer, it regards itself as more important than those fundamentally concerned with it; namely, the complainants, the public and the defendants. I am not pretending—I never have—that this Bill provides a perfect remedy in every circumstance, but there are many cases where endless disclosure, primary and secondary, is not required. There are many cases in which disclosure is not fundamentally important. In those cases, which may be a minority—nevertheless, an important minority—after all this time we ought to begin to get on with the protection of victims in our system, whether they are complainant witnesses, child witnesses, witnesses under disability or simply the terrorised witnesses. I remind your Lordships yet again that there is already a provision for the admissibility in evidence, without cross-examination in some circumstances, of statements made by those who are too terrorised or too afraid to come to court.
The noble Viscount is quite right in his historical reminder. The measures are based on a recommendation made by the late Judge Pigot in his advisory group on video evidence, which was published a long time ago—in 1989. He made the general suggestions which formed the basis of our approach. As the noble Viscount said, with his enormous experience of the court system, it is perfectly true that the Pigot recommendations 1377 significantly predated the disclosure provisions introduced in April 1997 by the Criminal Procedure and Investigations Act 1996.
In many cases—I have never pretended differently—the defence is unlikely to be ready or willing to cross-examine witnesses until shortly before a trial begins. It would be wrong for any procedure or any judge to attempt, coercively, to interfere. I stress the words, "until shortly before a trial begins". If the average is 10 months—that means that some cases take longer than 10 months—that is a standing, continuing reproach to our judicial system. There is no reason why the judicial system should not be taken firmly by the neck and shaken. I do not mean the judges; I mean the whole system which, for far too long, has been polluted by interference on a delaying basis by those who are well versed in it. I speak as a game-keeper who was formerly a poacher, but now retired.
If we try, we can make improvements. They will not be 100 per cent. appropriate for every child complainant, every child witness or every adult who may be under a disability. There are two alternatives: either we begin with this enormous effort of will and determination or we do nothing. I am too young to want to do nothing.
As the noble Viscount said, it is perfectly true that this will be an inappropriate help in many cases, but it will be better than what we offer at present. It will be a start to doing away with uncertainty. The noble Lord, Lord Cope, was quite right; indeed, it entirely coincides with my experience. Nine months or 10 months is a lifetime to a child. What is even worse is the constant nagging, on going to bed every night, of not knowing whether or not they will have to give evidence and when the court date will be. At least certainty is better than that; we owe it to people. The noble Lord, Lord Thomas, is quite right to say that we must not confine ourselves to children because many other people have the oppressive fears that we have colluded in for far too long.
There are some cases where we could get the video recording of evidence in chief fairly closely followed by cross-examination. However, as the noble Lord, Lord Thomas, said, that would be very difficult in fraud cases; indeed, it could also be difficult in some murder cases. But in quite a number of other cases it would be perfectly straightforward.
Given the will and determination that noble Lords have shown they abundantly share in the context of the Crime and Disorder Bill, we must bend our minds and wills to the training of those who participate in the system. It can be made to work. After all, the listing system is quasi-judicial, but it is not beyond our wit, intelligence and, perhaps more importantly, imagination to list cases in an appropriate way to ensure, as criminal justice is now beginning to do, that priority cases get true priority. There is no difficulty in that respect, except the lack of will and determination.
Therefore, we should start to manage cases better. After all, I am addressing the Committee in the context of the Woolf reforms, where the noble and learned Lord's theory and philosophic approach is that judges 1378 should manage cases—what an extraordinary proposition! The public interest in the speedy adjudication and determination of all disputes, whether criminal or civil, is properly regarded as part of the public's interest. They are not private proceedings between the prosecution and the defence; they are wholly involved morally, politically and socially with the public interest.
I recognise that this is not a perfect solution, because there will be none. However, it is an improved solution. I am saying that we must make a start. We must train practitioners and make them see that it is a professional obligation. We must encourage the judicial system about listing and we must also encourage judges consistently to manage the criminal cases that are in their court centres. There is no one—be it the Lord Chief Justice, the Master of the Rolls in a civil context, the Lord Chancellor, the Director of Public Prosecutions or the Attorney-General—who does not believe that these are coincident interests to which we can work towards.
I am not going to promise that the world, presently flat, will become round as soon as the Bill receives Royal Assent. I know that not to be true. However, we can and must make a start. If we can give certainty to those witnesses who are vulnerable—a decent regard for their vulnerability is all that we are pressing for—we can make a start. There will be difficulties. There will be those who will not see that any reform can conceivably be of any advantage. There will also be those who will say that when they started at the Bar, when they first became solicitors or when they first learned to read and write, things were different. Of course things were different then; but, fortunately, they will not remain the same.
As I said, there will be difficulties. However, I believe we can manage them in the way that we are managing the Narey experiments. We can have designated judges, as, indeed, we have designated judges to try rape cases. I see that the noble and learned Lord, Lord Mackay of Clashfern, is present this evening. If I may say so without presumption, one of the great ornaments of his tenancy of the Woolsack was that the Children Act was brought into play. For virtually the first time it was a necessary requirement—which he insisted upon—that judges who tried these extremely difficult cases should not be allowed to try them without being designated, and they could not be designated without being trained. We do not necessarily need statute for these things. What we need is the efficient management of a system which creaks.
§ Lord Lester of Herne Hill
Before the Minister sits down, he was good enough to refer to me in the context of the doctrine of unripe time. Does he accept that neither the doctrine of unripe time, nor the slippery slope, nor the argument that the existing machinery works well, nor the argument of the wedge, or any of the other arguments for doing nothing apply in my opinion to this Bill, to this provision or to the other provisions that we shall discuss? In my view the doctrine of unripe time has no application because this should have been done 10 years ago. Judges from other 1379 countries, from the Continent and the rest of the Commonwealth, look with amazement at the fact that we have not done it before.
§ Lord Thomas of Gresford
The noble Lord makes my case for me that this clause is too widely drafted. He says that we should start. I agree with that as I do not wish to stand still. But let us also prioritise. As this Bill is drafted at present, the provisions could be used, for example, for supergrasses who would certainly be in fear and who would certainly have their evidence qualified by that fear. That is not the kind of case we want to start with. Let us go back to the provisions of Clause 16(1) and look at the people who are declared eligible for assistance in that subsection; namely, children and those suffering from a disability. Let us start with them. As experience of the use of video recording expands, we can move to other areas and to other defendants.
§ Lord Williams of Mostyn
I shall reply briefly. In some supergrass cases the allegations are of serial murder and torture. I decline to accept the proposition that they are of less public interest and importance.
§ Lord Mackay of Clashfern
Before the noble Lord completes his response can he say whether it is necessary that the special measures direction, which permits the examination-in-chief to be on video, need be the same as permits that for the cross-examination; in other words, may it not be desirable to allow for the possibility that as the procedure develops it may appear practicable—although it did not earlier—to have the cross-examination on video? It appears that the decision with regard to the cross-examination has to be made at the same time as the decision with regard to the examination-in-chief, if I have understood the position correctly. I am, of course, subject to correction. I thank the noble Lord for what he said about me earlier. That was kind of him.
§ Lord Williams of Mostyn
I have made those remarks on many public occasions for the modest reason that I believe the reforms of the Children Act were correct. I shall consider the noble and learned Lord's question. My immediate impression is that a direction as to special measures can be capable of being altered as circumstances change. If I am wrong about that, I shall of course write to the noble and learned Lord. Even if I am correct, I shall write to confirm that.
§ Lord Mackay of Clashfern
Assuming that that cannot be done in terms of the Bill, it would appear to me—from what I have heard so far—desirable that it should be done. In any event, if that is not the case, it may be wise to change the position.
§ Clause 27 agreed to.1380
§ Viscount Colville of Culross moved Amendment No. 84:
§ After Clause 27, insert the following new clause—
§ TIME LIMITS FOR VIDEO RECORDED EVIDENCE CASES
§ (" . Where a court makes a special measures direction under section 26 or 27, it may, notwithstanding any time limits provided by regulations under section 12 of the Criminal Procedure and Investigations Act 1996, give and enforce such time limits as it thinks lit for the expeditious bringing to trial of the accused.").
§ The noble Viscount said: This amendment gives me an opportunity to comment briefly on the previous debate. The noble and learned Lord, Lord Mackay, mentioned the method whereby the special directions will be given. He is right in saying that there should be a provision enabling that to be done in separate stages according to what happens in a particular case.
§ What happens in existing trial cases is this. When the police decide that there is a case to be investigated, they take a statement from the child. It will in future be from a much wider selection of witnesses. It is not until much later, when the matter comes up for discussion—for instance, under Section 32A of the 1988 Act—that it has to be decided, usually by, the Crown Court, whether that statement will be admissible as part of the evidence in chief of the witness. That is the first time that the matter comes before the court, although the material has already been prepared—it is on tape by that time, and has been for a little while.
§ The point of this amendment is to take the noble Lord, Lord Williams—and indeed the noble Lord, Lord Lester—up on the whole issue of shaking everyone up and getting these cases hurried up. I could not resist drafting this clause. The Bill already includes (in Clause 22) screens, which we use now; evidence by live link (under Clause 23), which we use now; evidence given in private (under Clause 24) which we do now; and removal of wigs and gowns (under Clause 25) which we do now. I thought, therefore, that it would be following this very suitable trend if I tabled a new clause to allow judges to take charge of a case.
§ At Second Reading I made some suggestions as to how matters could be speeded up. So far as concerns the judiciary, they can certainly do that once the matter comes to the Crown Court. What they cannot control are the events that precede that stage. I suggested at Second Reading that when the CPS, or whoever it will be under the Access to Justice Bill, finds a case where a witness is likely to give evidence on video and will possibly have to be cross-examined, it should be given priority. The public defender service, or whatever that will be under the Access to Justice Bill, should make certain that the defence is alerted to the priority of the case, and that the magistrates are alerted so that the matter is given priority in the magistrates' court for committal purposes. Then, when the case comes to the Crown Court, of course the noble Lord, Lord Williams, is right: the listing system is a judicial one and something can be done about it. But nothing at all can be done about it until the matter arrives in the hands of the judicial system in the Crown Court. The magistrates have their own judicial system. They can do it if they are given the necessary encouragement. I have therefore tabled a proposal that can be done anyway. That is the trend in 1381 this Bill—to make statutory what everyone can do anyway. The only point I have added is that the time limits could be enforced. That we can do anyway, by means of wasted costs orders. If this provision were written into the Bill it might add a little punch to the views that are being expressed on all sides of the Committee.
§ The noble Lord is not expected to accept this amendment. I merely point out to him that it is not just the listing and judicial system that is involved; it is the entire scope of the criminal proceedings. All those involved in them must have a little spur to push them along faster than they go at present. One of the spurs is that the Crown Court should give the necessary directions.
§ When this matter was discussed in 1991, the noble Lord's predecessor as Minister of State, the noble Earl, Lord Ferrers, rejected this whole approach. He said that it was not practicable. I am glad that the Government and the Home Office have changed their mind.
§ I remember from my period as Minister of State, a very long time ago, that when a file became the subject of the attention of the parliamentary commissioner, the colour of its cover changed. It became dark red—maroon—and everyone knew that it was a very important file. I wonder whether we might use some colour-coding system of that kind which would enable these cases to receive the priority which I am sure they deserve. In the meantime, I wonder whether the noble Lord would like to follow his own lead and incorporate into the Bill things that we can do anyway but which perhaps ought to have some statutory backing. I beg to move.9.45 pm
§ Lord Williams of Mostyn
I am happy to be teased by the noble Viscount that we are simply putting into statute what he and his judicial colleagues do anyway. I do not believe that that is universally true about the Bill. We are talking in the context of the Crime and Disorder Act and its consequences. As your Lordships know, we are introducing a number of measures to reduce delay in the criminal justice system and are piloting the measures at present, mainly to do with straightforward guilty pleas, I agree, but also to do with enhanced case management in the magistrates' court, to which the noble Viscount referred, and starting indictable-only cases in the Crown Court.
I do not believe—and I do not think that the noble Viscount necessarily believes—that the new clause would help to address the problems that we have discussed on a number of occasions this evening. Under Section 12 of the Criminal Procedure and Investigations Act 1996 and regulations, a time limit of 14 days is set for the preparation and service of defence statements once the prosecution has served primary prosecution disclosure, which in turn informs secondary disclosure by the prosecution of any matters which the prosecution considers might assist the defence. I agree with the noble Viscount. The conduct of the prosecution is entirely within the control of the Crown Prosecution Service, under the ultimate direction of the Director of 1382 Public Prosecutions, subject to anything that the Attorney-General may have to say. I agree with him that we can do things there. I do not think we ought to give the courts the power to disregard the time limit for defence statements prescribed by Parliament on this occasion because it applies in a limited range of cases.
In this context, I think that what I said earlier has virtue and weight. Unless practitioners are devoted to the scheme of things which I describe, unless judges are determined, and in particular unless there is a continuity of judicial approach in a particular case, preferably by a single judge managing the case, we shall not get anywhere. The Court Service is in the process of taking forward a project to improve the effectiveness of plea and direction hearings following a review of such hearings and I hope that the judiciary will feel the benefit. I agree with the noble Viscount that a firm judicial grip is needed at preliminary hearings and pleas and directions hearings. It can significantly minimise some of the delays. If one looks, as I do sometimes, at the charts of progress in fairly similar cases at different Crown Court centres, I feel that there is no real answer to the discrepancies other than that some judges are perhaps more focused on these problems than their colleagues in other court centres.
We intend in due course to act on the provision in the Prosecution of Offences Act 1985, as amended by the Crime and Disorder Act 1998, to enable the introduction of statutory time limits for the prosecution of criminal cases overall. I think that the tide has turned; I think that minds are now open to the more effective and efficient management of the system. I do not think that there is fundamentally much difference in approach between the noble Viscount and myself. I am not able to accept his amendment, as he rather foresaw, but I think that he and I share the common goals that he has identified.
§ Amendment, by leave, withdrawn.
§ Clause 28 [Examination of witness through intermediary]:
§ Lord Williams of Mostyn moved Amendment No. 85:
§ Page 21, line 31, leave out ("and (it necessary) explain").
§ The noble Lord said: For your Lordships' convenience, I will speak to both Amendment No. 85 and Amendment No. 85A. Amendment No. 85 is in the name of the noble and learned Lord, Lord Ackner, who has indicated to me that he very much regrets his inability to be here this evening for a domestic reason, which I fully honour and, if necessary, will explain. Amendment No. 85A is in my name in the words set down on the Marshalled List. Essentially, the reference is more specific about intermediaries and exactly what they may do.
§ It is important that intermediaries should be allowed to give explanations in response to questions or answers, if necessary, to help the court and the witness to understand each other. Theirs is not dissimilar to the function of a foreign language interpreter. It is simply to enable the witness and the court to understand one another.1383
§ Of course an intermediary must not represent the intent or the particulars of a question or, in particular, of an answer. That is true of foreign language interpreters and it is true of intermediaries. Occasionally an explanation may be needed—for example, an explanation of a difficult word where a simpler word might have been used, or an explanation of a word that the witness uses for a personal place or experience that otherwise would not be easily understood by the court. That is explaining what the witness meant to the court as opposed to what the questioner meant to the witness. The court can of course reject any explanation offered by the intermediary or require the intermediary to clarify the answer with the witness. The judge, magistrates, jury—if there is one—prosecution and defence lawyers will be able to see and hear the witness and the intermediary communicating.
§ It is important that intermediaries understand their function clearly and that they are not there to interfere with the substance of questions and answers. I recognise that, before Clause 28 is implemented, we need to spell these matters out clearly in guidance and training. I beg to move.
§ On Question, amendment agreed to.
§ Lord Williams of Mostyn moved Amendment No. 85A:
Page 21, line 35, at end insert—
("and to explain such questions or answers so far as necessary to enable them to be understood by the witness or person in question.").
§ On Question, amendment agreed to.
§ Lord Rix moved Amendment No. 86:
Page 22, line 18, at end insert—
("( ) Rules of court may make provision for the appointment and appropriate training of an intermediary.").
§ The noble Lord said: In moving Amendment No. 86, I wish to say that the proposal in Clause 28 to introduce intermediaries is a bold step and one that I have no hesitation in recommending the Government to take. With proper training, an intermediary can enable a witness who would not otherwise have access to the justice system to come forward. It would also facilitate the production of quality evidence.
§ However, it is vital that the scheme is implemented carefully so that both the intermediary and the court can be assured that they are performing to standards consistent with the production of good evidence. This will take some very innovative thinking on the part of the Home Office.
§ Even parents of learning disabled sons and daughters—and I am one such parent—will find it difficult to know the limits of any assistance required in a courtroom situation. I view the training and the presentation of intermediaries as essential if such services are to be reliable, safe and in the best interest of vulnerable and often frightened people who may have limited skills with which to seek out their own independent support. These issues must be addressed through guidance, which is why I propose to add an additional subsection to the Bill.1384
§ I would like to make one further brief point on this clause. I notice that no account has been taken of the clause within the financial impact assessment which accompanies the Bill. Undoubtedly there will be financial implications in setting up the intermediary scheme properly. I am disappointed—indeed, amazed—that central funding has not been allocated for this purpose at any stage of a case. There can be little benefit in providing support for a witness in court if the intermediary is not given support at an earlier stage, including as regards the preparation of witness statements and ensuring that a witness is familiar with court procedures. I beg to move.
§ Lord Swinfen
I support this amendment purely because the intermediary who could be appointed to help someone with a mental disability may have no idea of a courtroom, or how the courts operate, or the proper procedure. They may not be all that well educated, and it would be helpful to the court if they had some training to enable the proceedings to proceed smoothly.
§ Lord Williams of Mostyn
I agree with the noble Lords, Lord Rix and Lord Swinfen, that training is required. That was why I indicated in the debate on the previous amendment that before Clause 28 is implemented there will need to be proper guidelines on how intermediaries are to perform their functions and on what qualifications and training will be required. That may be flexible. It may be that a speech therapist has expertise. In some cases it may be a relative of the witness. Therefore, the training and "qualifications" are likely to differ quite significantly as between someone who is a relative of the witness, who will probably never be called upon again in his or her lifetime to be an intermediary, and a speech therapist or someone qualified to deal with the partially sighted or those with poor hearing who may well do it on a regular basis.
I envisage that the guidance will set out a number of factors and criteria that the court may wish to consider when appointing an intermediary. But we believe that it is better to leave it to the court finally to exercise its discretion about whom to appoint. That is much more flexible, practical and helpful than prescriptive rules of court. Guidance would be more readily available to prospective intermediaries who would be unlikely to be legal professionals and might do it on a regular basis or might well not do it more than once. There is a degree of provision for intermediaries that falls within the existing court service allocations for expert witnesses, et cetera. That is intended to deal with the question raised about the financial memorandum. We need to be flexible to achieve the best practical outcome, and we believe that guidance rather than rules of court is the best way forward.
§ Amendment, by leave, withdrawn.
§ Clause 28, as amended, agreed to.1385
§ Clause 29 [Aids to communication]:
§ [Amendment No. 87 not moved.]
§ Clause 29 agreed to.
§ Clause 30 agreed to.
§ Clause 31 [Warning to jury]:
§ Lord Rix moved Amendment No. 88:
Page 23, line 20, at end insert ("; or
(b) a statement made under section 30(1)").
§ The noble Lord said: Currently, this clause stands alone and consists of a general warning to the jury against acting prejudicially towards the accused in cases where special measures have been granted. I impress upon those members of the Committee who are present the importance of incorporating an additional warning to the jury not to act prejudicially against a witness. I refer to the jury questioning the weight of a witness's evidence solely on the basis that he or she requires special measures in order to give evidence. Instances of prejudice and discrimination against people with learning disabilities are all too widespread in every sector of society. Therefore, it is unduly optimistic to believe that those prejudices will not be carried over into the courtroom by some members of the public when undertaking jury service. To add an extra warning is a necessary safeguard that should be backed up by the provision of awareness training for jurors who are involved in cases where special measures are to be employed. I beg to move.
§ 10 p.m.
§ Lord Williams of Mostyn
Judges normally only need to give a warning to the jury in order to avoid prejudice to the defendant. That warning might cover the inferences that a jury is entitled to draw from the evidence given or from the defendant's behaviour.
Clause 31 provides for a warning, where special measures are used, to the effect that the jury should draw no conclusions about the defendant from the fact that the special measure or measures has or have been used. We provide that because we recognise that the measures in the Bill constitute a significant change of culture for the jury as well as other participants. I do not think that it is necessary to go to the extent that the noble Lord does in the context of witnesses. The judge already has ample discretion to give directions to a jury about witnesses' competence or resolution. We have made that safeguard for the defendant because in a sense this is a change from what we had formerly and we want the defendant's position to be kept absolutely intact in its full integrity.
I do not think that we need the amendment for adequate instruction to be given on the status of evidence to a jury in respect of a witness.
§ Lord Rix
I am sure noble Lords will note that the amendments I moved today, mainly unsuccessfully, have been concerned with people with learning disabilities. I trust and believe that the Minister is aware that people with learning disabilities present a special case as regards court proceedings. It is easy for juries, 1386 and indeed defence and prosecuting counsel, to object to the evidence given by a person with learning disability because it may be given in a way which is perhaps not acceptable to the normal processes in court.
Having said that, I recognise the good will of the Government and the Minister underlying the Bill and to the amendment I moved. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 31 agreed to.
§ Clause 32 agreed to.
§ Clause 33 [Complainants in proceedings for sexual offences]:
§ [Amendment No. 89 not moved.]
§ Lord Wigoder
Before we continue further with Clause 33—I am not sure what is meant by the doctrine of unripe time, but this may be an appropriate observation—perhaps I may indicate to the Minister, as I am sure he is aware, that we are now embarking on a major and extremely controversial clause on which there is bound to be substantial discussion in the Chamber. I ask him whether he considers it entirely appropriate to proceed on that discussion bearing in mind the time and the fact that inevitably the attendance is perhaps not as representative as it might be on another occasion.
§ Lord Williams of Mostyn
I understand what the noble Lord says. I know that he does not say it for any trivial purpose. I understand—this really is unripe time or its close association—that the usual channels had agreed that we should conclude grouping 37. I am in the Committee's hands as always. My Chief Whip is not present. I do not know what the Committee wishes. I am entirely in noble Lords' hands because I genuinely wish to achieve the best outcome and the best product (I am sorry to use the jargon) for the Bill. I know that a number of noble Lords are present on the basis that we were to continue and break after grouping 37.
§ Lord Lester of Herne Hill
Since a number of noble Lords, including the Lord Chief Justice who is in his place, have attended especially for this debate, it seems undesirable that it should be postponed. We are all young in spirit as well as trying to emulate the energy of the Minister. I should have thought that the time is now ripe for the debate, if I may respectfully say so.
§ Lord Cope of Berkeley
I am inclined to agree with the view expressed by the noble Lord, Lord Lester of Herne Hill. It is true that in discussion on today's debates before proceedings began, I believe that we anticipated we might reach this point somewhat earlier in the evening. Nevertheless, as we have now reached it, and since a number of noble Lords have attended for 1387 the purpose of discussing the amendment, unless there is a strong wish to draw stumps and debate it on another occasion, I suggest that we should proceed.
§ Lord Williams of Mostyn
I gather the general feeling to be contrary to the view expressed by the noble Lord, Lord Wigoder. Therefore, I respectfully suggest that we continue.
§ Lord Thomas of Gresford moved Amendment No. 90:
§ Page 24, line 5, at beginning insert ("Without the leave of the court.").
§ The noble Lord said: The purpose of the amendment is so to amend Clause 33 that the court has a discretion to grant leave to cross-examine in person a witness who is the complainant. It is the removal of the prohibition that is starkly stated in Clause 33 and its replacement by a discretion to be exercised by the judge.
§ The consequences of a conviction for rape or a serious sexual offence are a long term of imprisonment, intolerable persecution from other prisoners within the prison, registration as a sex offender, restrictions after completion of sentence and serious public opprobrium that may last for the rest of that person's life. It might be thought that miscarriages of justice should be avoided because of the consequences for a person convicted of a sexual offence. In principle, there should be no less a burden on the prosecution to prove guilt than in any other category of case.
§ The trial cannot be conducted on the basis that the defendant is a rapist and that the complainant is a victim since the whole purpose of the trial is to determine whether that be the case. The defendant has a basic right to defend himself and to present his own case in the way he considers best. He may have reasons to distrust lawyers and, in certain situations, he may be in the best position to conduct cross-examination.
§ On Second Reading, I mentioned the possibility that a husband or partner may wish to put questions directly to his wife or partner who may be complaining of marital rape and seek to persuade her, through cross-examination, that her complaint is not a true complaint.
§ Unless the defendant's case is put to the complainant, the jury has no means of evaluating the evidence which has been brought forward. The suggestion of these provisions is that the court should appoint a barrister, but a court-appointed barrister will, in practice, be in a virtually impossible situation. He will not be acting for the defendant, who may refuse, in the circumstances, to speak to him at all. He will not be entitled to see the defendant's proof, if there is one. The defendant's case may be entirely different from that which appears in his original interview as part of the prosecution case. Should he give evidence and should his case, in giving evidence, be quite different from the interview—the information which the court-appointed barrister has—there will obviously be a necessity for the complainant to be recalled to be cross-examined again.
§ But there is no way in which the trial judge could prevent a defendant who wished to represent himself, and who had had a court-appointed lawyer thrust upon 1388 him, from addressing the jury on the basis that he had not had a fair trial. He would be perfectly entitled to say to the jury, "I did not want that man. He has not asked the questions that I wanted to be asked. He has no instructions from me and my trial is therefore unfair". Should the jury agree with that as a proposition—and a jury might well do so—then the defendant might be acquitted in a case where he should not be acquitted.
There have been two highly-publicised cases in which defendants abused their rights to act in person in order to torment the complainant. The noble and learned Lord, Lord Bingham, the Lord Chief Justice, in the case of Brown, pointed out that the trial judge has power to protect witnesses and to control questioning. He said,
The judge may, if necessary, to save the complainant from avoidable distress, stop further questioning by the defendant and take over the questioning himself. Further, if the defendant seeks by his dress or bearing, manner or questions, to dominate, intimidate or humiliate the complainant the judge should order the erection of a screen to protect the witness",
and, in the circumstances that we have been discussing earlier in Committee, the judge would be entitled to order the further giving of evidence by way of a video link or by one of the other measures contained in this Bill.
§ It is for the Minister to explain whether he believes that these measures which the Lord Chief Justice set out in that judgment are inadequate. In my judgement, it would not be satisfactory, if the purpose of this provision is to do something rather than nothing, to use the phrase of the noble Lord, Lord Williams of Mostyn, earlier this evening. It is not enough that this provision should go in as window dressing if there is already adequate provision in the judgment in the Brown case to cover the position of a complainant.
§ The position taken by myself, although not for the moment by my party, in Amendment No. 90 is to leave the control of the proceeding in the hands of the trial judge, who can evaluate the particular situation in the case. Perhaps I may make a general point. It seems to me that, over the past few years, Parliament has interfered with the discretion of judges not simply in matters of sentencing—and this is an obvious example—but in the exercise of their general discretion to control and run their courts. I believe that the provisions in Clause 33 are unnecessary. I beg to move.
§ Lord Carter
Before we continue the debate, perhaps I may say that I missed the earlier remarks of the noble Lord, Lord Wigoder. I believe it has been agreed that this group should be split at Amendment No. 95 and that we should discuss the group of Amendments Nos. 90 to 94. Then we should go to the group containing Amendment Nos. 95 to 134 and finish there. We should then continue with Clause 35 on Monday, if that is agreeable.
§ Lord Wigoder
I hope that the Government Chief Whip will allow me to state that had I observed that the noble and learned Lord the Lord Chief Justice had 1389 arrived specifically in order to contribute to this debate, I would never had been so presumptuous as to make the suggestion that I did.
§ Baroness Mallalieu
Amendment No. 92 stands in the name of the noble and learned Lord the Lord Chief Justice, the noble Lord, Lord Wigoder, and myself. It is grouped with this amendment. Therefore, in speaking to that amendment, perhaps I may say something in relation to the amendment which the noble Lord has just moved.
At Second Reading on 15 December, the noble Lord, Lord Williams of Mostyn, said in relation to this Bill,We are approaching this with a genuinely open mind. If your Lordships table amendments that are consistent with the theme and philosophy of the Bill I undertake to give each one [decent] consideration".—[Official Report, 15/12/98; col. 1239.]In outlining the philosophy behind Clause 33, the noble Lord started from the position which I would ask him at the outset to reconsider. In relation to complaints of rape and certain other sexual offences, he said,We owe a duty to the victims of those distressing crimes to ensure that they are not victimised afresh when they come to court. Clause 33 and 34 are designed to fulfil our duty which, in the past, has not been fulfilled".—[col. 1238.]I begin by saying that what I go on to say is in no way to disagree with the noble Lord that no witness, whether truthful or otherwise who comes before the court, should be bullied, intimidated or threatened. Indeed, when a witness is lying, in my experience that fact is more likely to become clear to those in court if he is relaxed and as at ease as possible in the course of giving evidence.
However, when the Minister used those remarks in outlining this part of the Bill on Second Reading, he appeared to be basing his approach on a presumption that the witness is a victim. The purpose of a contested trial is to determine whether or not that is so. The accused may instead be the victim of a false allegation. We must indeed find ways, as this Bill does, in which we can enable a witness to give evidence more easily so that the court can better determine where the truth lies. But in framing changes in criminal legislation it is easy to fall into the trap of assuming guilt on the part of the accused. Some witnesses may need more help. We are all agreed about that and other parts of the Bill provide for it. However, that does not mean that those who are or may be falsely accused need fewer safeguards or to have their rights eroded. And we must be vigilant to see that that does not happen, despite our best intentions, in these provisions.
Secondly, the noble Lord, Lord Williams, bracketed child witnesses, to which Clause 34 applies, together with adult witnesses in sexual cases. I am sure that he did not intend to be either patronising or insulting because we in this House know him well and we know that that is not his way. Children need special protection in our courts. They are without exception under a disability by reason of age. I have no objection to the extension of that protection; indeed, I welcome it. They are less well able to give evidence; they may require specialist cross-examination to elicit the truth; and the 1390 courts rightly take special powers to ensure that justice is done. However, adult victims of sexual offences do not form a category of people giving evidence under a disability. They come from every background and every level of education. Most, but not all, are women. Some are robust, others are not. They are not under a disability as of class and it is patronising to treat them as though they are.
Of course, very few people relish the idea of giving evidence in any case, particularly in a sexual case which may be acutely embarrassing. But some witnesses are not deterred, and indeed are anxious, to confront their attackers face to face and play their part in seeing that justice is done. When offered the opportunity to have her statement read rather than come to court and give evidence live, I have known a witness in a serious sexual case insist that she wished to give evidence in person in court in the face of her attacker. And she was indeed a devastating witness.
When an adult witness is vulnerable and likely to be prevented from giving evidence satisfactorily if cross-examined by the accused in person, Section 35 gives the court powers to restrict the defendant's right to ask the questions. But that is a different matter and it may well be appropriate in some cases. However, Clause 33 does something which is quite different. It imposes an absolute prohibition with no discretion. It allows for no consideration of the wishes or needs of a witness or of the interests of justice.
The objections to an absolute prohibition, a mandatory ban, are, frankly, these. First, it is a drastic step to deprive an accused person of the right to conduct his own defence. He may dislike or distrust lawyers, as the noble Lord, Lord Thomas, said. He may feel that he can do a better job himself and he may be right about that. He may feel that if he can put his questions directly himself he may elicit the truth where others may fail. Again—forgive the anecdote—I recall a case where the defendant, accused of rape after an argument by someone with whom he had been living, insisted on questioning her himself. It took no more than very few questions, put gently and courteously, before she admitted that the allegation had been made in temper and out of spite, and was now regretted and withdrawn. She was not prepared to continue the lie to that man's face.
The reality of a refusal to allow an accused to cross-examine in person is that he may well afterwards, if he is told that he must have a counsel to represent him, as the noble Lord, Lord Thomas, has already said, quite frankly refuse to co-operate with the lawyer assigned to him. We are of course talking here about a defendant who has already refused legal representation. He may fail to instruct his counsel adequately or at all, so that in effect his case goes by default. The jury will almost certainly be aware in his final speech that he has been prevented from conducting his own defence in cross-examination and may well regard that as unfair and treat his case with particular sympathy.
Is it, I ask, necessary to deprive all defendants of that right in every case of this type? I think not. Reference has already been made to the two cases—both of them 1391 bad cases, both of them attracting extensive publicity and both of them occurring two years plus ago. On 7th May last year the Court of Appeal gave clear guidance to judges faced with this situation, and gave them clear directions as to the steps which they could take, and indeed indicated quite clearly that the Court of Appeal would back judges who, in an appropriate case, stopped a defendant from asking direct questions and indeed stopped him in advance of asking questions, if they had good reason to think that his right to do so would be abused.
Since that date there has been no further problem. There were, in the words of the noble Lord, Lord Williams, failures in the past, but in May of last year the Court of Appeal put them right. It is very rare indeed for a defendant to seek to cross-examine himself. Most of them have the good sense to use a trained advocate and, apart from those two cases, I know of no instance where a defendant has intimidated witnesses in that way since. It may be said that public perception is that this happens frequently and so victims are discouraged from coming forward to give evidence. If that is the public perception it is a misconception, and legislation, particularly where it takes away a basic right from the defence, should not be based upon public misconception.
The remedy surely is to acquaint the public with the facts, which are two cases only and action by the Court of Appeal, since when no further problems have arisen. It may be said that victims need to be reassured that this cannot happen and that an attacker will not be permitted to cross-examine. I am sure that many more potential witnesses would be encouraged to come forward if they could be reassured that no one would cross-examine them or question their account at all. But cross-examination is, as we all recognise, a safeguard—indeed the main safeguard—for the wrongly accused against false conviction.
Amendment No. 92, in my name, does not go as far as others in this group. It merely asks that Clause 33 shall not come into force unless and until the Secretary of State, in the light of experience, certifies that it is necessary to protect witnesses. There is no evidence that that is the case today. If the position changes later he can say so, and have his way. It is a very modest amendment and I hope it is one which will find favour. As the noble and learned Lord the Lord Chief Justice said at Second Reading, it is surely wise to wait and see if a further remedy is needed before depriving judges of the discretion to control proceedings in their courts, fortified as they are now by the judgment of the Court of Appeal, in the way that they think best.
§ Lord Wigoder
I rise to support Amendment No. 92 with a marginal preference for that amendment rather than the other amendments in this group. I feel strongly that, unamended, Clause 33 ought not to be allowed to stand.
Like several others Members of your Lordships' Committee, I speak from a lifetime's experience at the criminal Bar, sometimes prosecuting, sometimes defending and sometimes trying cases in which, from 1392 time to time, sexual offences were involved. I hope therefore that the Committee will consider my next few sentences to be relevant to our discussion.
Over that lifetime I came to have a huge respect for our jury system. I believe that on almost every occasion juries returned the appropriate verdict in accordance with the weight of the evidence. But I am bound to say that over that period too there were cases where the verdict surprised me. I have no evidence as to why juries occasionally return such verdicts because evidence is not permitted as to what takes place in a jury room—I am glad that is so—even though that upsets some slightly dyspeptic academics and journalists.
But looking back over those cases, I detected a perfectly clear pattern of the cases in which juries did not convict, even though the evidence appeared to be overwhelming. I suspect that the noble Lord, Lord Williams of Mostyn, the noble Baroness, Lady Mallalieu, and the noble Lord, Lord Bach, will all have had similar experiences. They were cases in which the jury detected that something was wrong. For example, they included cases in which the penalty, if there were to be a conviction, would have been totally disproportionate to the offence. Those cases ranged from a capital murder charge where the jury returned a verdict of manslaughter because they felt that there was strong mitigation on behalf of the defendant, to a much lesser case where the Chief Officer of Police was charged with shoplifting some petty item from Woolworths, and the jury acquitted because, should there be a conviction—never mind the sentence the court would impose there would be a penalty not only of the loss of his job, but also the loss of his pension.
There were frequently cases where the jury felt that the power of the state was being used unreasonably to oppress the ordinary citizen in a matter in which it was apparent to everybody that the ordinary citizen appeared to have been acting in the public interest. I remember a number of cases under the old Official Secrets Acts where juries returned acquittals though there was perfectly clear evidence to the contrary.
There were cases where the prosecution had seemed to act unfairly; where they had been discovered half-way through the case to have concealed some evidence that they ought to have disclosed to the defence. There were cases where witnesses for the prosecution were prejudiced and biased and discriminatory in their evidence, however weighty it might be. An obvious example of that, perhaps, is the O. J. Simpson trial heard recently in the United States. There were even cases—I hasten to use the past tense in the presence of the noble and learned Lord the Lord Chief Justice—where judges on occasion appeared to be prejudiced in their summings-up in an attempt to secure convictions.
In all those classes of case from time to time the jury would return verdicts of not guilty, despite apparently overwhelming evidence. I am in no doubt that the reason was that the juries, apart from the oath that they had taken, looked at something rather more important; that is, they looked at what they perceived to be the interests of justice and what they perceived to be the fairness of the trial and the fairness of the result. If that is right, let 1393 us apply that situation to that which will now arise if trials are carried out in accordance with the procedure that is conceived by Clause 33.
It is accepted by everybody that a defendant has a complete right to defend himself. Under the clause he still has that right. The right is not refused or abolished. However, there may be certain penalties attached if the defendant insists on enforcing his right. He has a complete right to defend himself or, if he has a legal representative, to dismiss that representative summarily in the middle of the trial if he wants to do so, without giving any reason.
Jurors see a rape case as a case in which the parties start level. They do not see it in the way that some publicists tend to analyse such cases. They do not assume from the very beginning that the man in the dock is a violent sex pervert and that the girl in the witness box is a chaste and comely maid. They start with no preconceived notions and listen to the evidence produced. What happens? In due course, the girl gives her evidence and the defendant, representing himself, as is his right, is told, "No, sorry; you can't ask any questions". What will the jury think? Let us suppose that it turns out later that the defendant has an alibi and says, "I wasn't there. Somebody else interfered with you, if your account of the interference is true". But the defendant is not allowed to put that. It is no good saying, as is said in one of the later clauses, that the judge can appoint a lawyer to act on behalf of the unrepresented defendant against his will and to put what seem to be appropriate questions. How on earth does a lawyer, seeking to represent someone in that situation, without any instructions, know where to start? How does the lawyer know whether the defence is one of consent, mistaken identity, or whatever?
In the result, I believe that the jury will instinctively react in some cases—not in every case; I do not want to exaggerate—saying, "This procedure is unfair. This man is in the dock and he is presumed at this moment to be innocent. He cannot put his defence because he is not allowed to".
It does not end there. Although the unrepresented defendant is not allowed to cross-examine the complainant, he has a total and complete right at the end of the case to make a speech from the dock. That can be a formidable experience. I recall a Minister of the Crown who spoke for five days solidly in such circumstances. It is very difficult for the judge to interrupt a defendant who is making a speech in his own defence from the dock, without also appearing to the jury to be not entirely impartial. A reasonably plausible defendant can say a lot of things in a speech from the dock when he will not be cross-examined, such as why he was not allowed to ask questions, how unfair it was and if only he had been allowed to ask questions, he would have challenged this, that and the other and perhaps have called evidence about this, that and the other.
It is not in the least difficult to envisage a scenario in which in those circumstances a defendant could gain the sympathy of the jury. The jurors would be solidly on his side and when in due course they returned a verdict, 1394 there would be a real danger that, however strong the evidence, from time to time, in some cases but not all, they may say, "This system is unfair and we are going to show that it is unfair by returning a verdict of "not guilty". That is what I fear will happen if Clause 33 becomes effective as it stands.
There are alternatives to the difficult problem of unrepresented defendants starting to "misbehave", if you like, to ask oppressive questions and to frighten and upset witnesses. There are now perfectly clear guidelines laid down by the Lord Chief Justice in the case of Brown which mean that the judge is in control of the case. In other words, the judge can take control of the case without the drastic measures that are suggested in Clause 33.
I remember one occasion, many years ago, when such a problem arose while I was trying a sexual offence case. The defendant was incessantly cross-examining the girl in the witness box and I was constrained to say to him, "Look, you have asked that question seven times now. I'll allow you to ask it once more, but then we've got to move on to something else. I am sorry to have to tell you, but if you won't take my advice and do what I suggest there will be no alternative but to ask you to finish your evidence and cease any further questioning". Fortunately, the defendant took the advice. He asked the question once more, received exactly the same answer and then moved on to another topic. Thus the trial proceeded to its end. Although the defendant was convicted, there was never any suggestion that I, as the judge in the case, was behaving improperly—and there were no guidelines in existence to support me.
However, at this stage when the problem is fully recognised and when the Criminal Division of the Court of Appeal has made it perfectly clear that it will strongly support the efforts of judges to control the evil which is being aimed at by the clause, I believe that the powers that the judges have will now be entirely adequate and will prevent this from happening. If the clause is passed, I fear that, as a result of the operation of its provisions, there may well he acquittals in several nasty cases of rape where verdicts of guilty would be fully justified on the evidence.
§ Lord Lester of Herne Hill
I find myself in a position of some embarrassment. In the first place, I could not attend the Second Reading debate because I was abroad and I very much regret that fact. Secondly, I am going to disagree with my noble friend Lord Thomas. As he said, putting it very tactfully, our party in this Chamber has no official position on the matter at this stage. Therefore, in a sense, we are speaking for ourselves. Thirdly, I am not a member of the criminal Bar, although I sat as an assistant recorder and a recorder for 10 years. There may perhaps be some advantage in my not being a member of the criminal Bar. I love my colleagues from the criminal Bar, but I am bound to say that I find them somewhat conservative when it comes to doing anything to change the traditional elements of evidence and procedure in criminal trials; indeed, even more conservative than I and my colleagues on the civil side.
1395 I shall address my remarks to something that I know a little about; namely, why I do not think that there is any violation of the fundamental right of the accused to a fair trial involved in Clause 33, why I think that there is no conceivable breach of the European human rights convention and why, if something like this provision is not in place, I think that there will be clear violations of the human rights convention—at any rate, if anything like the scandals that occurred in the two notorious cases were ever to happen again.
As the Committee knows, the impetus for Clause 33 springs from the 1996 rape trial of Mr. Ralston Edwards, who chose to conduct his own defence and then deliberately used the trial to embark upon a humiliating and intimidating cross-examination of his victim for several days while wearing the very same clothes that he had worn when he committed the offence. Naturally his victim suffered extreme emotional and psychological distress at being questioned in such a manner. She complained to the European Commission of Human Rights in Strasbourg of a breach of her right not to be subjected to degrading treatment. I believe that the case is progressing rather well from her point of view. In my view, it is very probable, if not certain, that the United Kingdom will be found to have breached the convention, including the positive obligation to ensure that such abuses do not occur.
A year after the abuse of the criminal justice process in the Edwards trial, another rapist was able to follow the example set by Mr. Edwards. Once again the courtroom was abused publicly to subject victims, in the words of the trial judge,to merciless cross-examination clearly designed only to intimidate and humiliate them",there being several victims on this occasion. Those cases badly damaged public confidence in the administration of justice in this area.
My noble friends Lord Thomas of Gresford and Lord Wigoder and the noble Baroness, Lady Mallalieu, all, I am sure, agree that such abuses of our criminal justice system must not be allowed ever to happen again for the sake both of the victims and of public confidence in our criminal justice system. We must not let our courtrooms be used to scare or intimidate victims of crime so that they are deterred by the ordeal of a humiliating trial from complaining or testifying.
A judge has a difficult task in controlling an unrepresented defendant. I have listened carefully to what has been said so far and I think nothing that has been said suggests otherwise. There are no codes of ethics, no training in questioning standards and legal tests of relevance, and no measures of censure that can be imposed on a non-lawyer who chooses to conduct his own defence. Nor are there many means available to a judge to control the nature and manner of a non-lawyer's questions when that judge is all too aware that too much control before a jury—as the noble Lord, Lord Wigoder, has pointed out in a different context—can prejudice the fairness of a trial and its outcome.
For those reasons, I respectfully disagree with the amendments which oppose Clause 33 because of a wish to test the guidelines recently given by the Court of 1396 Appeal, Criminal Division. Those guidelines are most welcome. They invoke what is the inherent power of a judge—a power which judges have always had to prevent abuses occurring in a courtroom. However, that inherent power did not assist the victims in two tragic cases. I believe that the guidelines, although most welcome, are a less sure guide than the guide given by Parliament in legislation. I do not think it is good enough to leave matters to the trial judge, even with the welcome guidelines, when there is a pressing need to restore public confidence in the administration of justice in this area.
It is, I think, entirely appropriate for Parliament to legislate to implement the obligations imposed by the European human rights convention. I do not think anything in Clause 33 usurps judicial functions or breaches separation of powers between the legislative and judicial branches of government. I think it is for Parliament to make the laws relating to evidence and procedure, and for the courts to interpret and apply the law.
Of course it is common ground that an accused has a fundamental right to a fair trial, but that is not the only fundamental right that must be protected in the administration of justice. Victims of crime have a right to be treated with dignity and respect and a right to have their personal privacy respected. Letting alleged sex offenders question their alleged victims directly in a publicly provided forum does not protect those competing rights. A properly proportionate balance has to be found and I believe that the Government's proposals achieve that balance without infringing the convention. The Bill does not take away a basic right of the accused, as I hope briefly to explain in the context of the convention.
The Bill was introduced with a single sentence statement made under Section 19 of the Human Rights Act that the Minister considers its provisions to be compatible with the convention. But the statement did not explain the Minister's reasons for reaching that conclusion. I therefore sought the reasons and the Minister gave them to me in a letter of 18th January 1999, for which I am grateful. As he knows, I hope it will be possible in future for the Government to find a practical way of giving reasons of this kind systematically when a government Bill is published, so that Second Reading debates can be better informed and the matter does not have to be dealt with in the way I am about to deal with it. This is presently the only practical way in which the House can be informed of the Government's reasons.
The noble Lord's letter explained that, in drawing up the provisions in Chapter II, the Government gave careful thought to whether they were compatible with the provisions of Article 6 and the right of the defendant to receive a fair trial. Article 6.3(d) states that the accused has the right,to examine or have examined witnesses against him".He also has the right under Article 6.3(c),to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require".1397 But, as the Minister pointed out, Article 6.3 does not confer an absolute right to instruct a representative of one's choosing nor to benefit from state funding regardless of means. Nor does Article 6.3(d) preclude a national requirement to be represented in criminal proceedings. The case of Croissant v. Germany supports those views.
And, of course, witnesses too have rights under Articles 3 and 8 of the convention. Those articles set out their right to protection from cruel and inhuman treatment and unwarranted intrusion into their private lives. Aggressive, humiliating and unnecessarily prurient questioning of a complainant by an accused person would, as the Minister pointed out—and I agree—raise issues under Articles 3 and 8.
The Government therefore believe, and I share their belief, that the provisions of Clause 33 and the following clauses will provide greater protection in future cases. The Government also believe (and again I share their belief) that the provisions strike an appropriate balance between the right of the accused to a fair trial and the interests of the witness and his or her right to protection under the convention. The Minister drew attention to the case of Doorson v. Netherlands in regard to the need to balance the witnesses and victims against the interests of the accused. He quoted from paragraph 70 of that judgment, which is very helpful.
I agree with those reasons and with the Government's belief that the provisions in Clauses 33 to 39 are fully compatible with the convention. There is no absolute right of the accused, whether at common law or under the convention, to conduct his defence as he pleases even if he does so in a manner which abuses the rights of his alleged victim. Indeed, the judgment of the Court of Appeal indicates as much in giving guidance.
It is said that there is no need for reform given the rarity of such cases. Yet, surely the serious abuse suffered by one victim, let alone three (Mr. Brown questioned two victims) is enough to demonstrate the need for change. There may well be a positive obligation on the Government under the European Convention to take steps to ensure that no other witnesses are so brutally treated in our courts.
The provisions of Clause 33 are well-balanced, circumscribed and necessary. The amendments tabled in this group would emasculate those provisions, whether by leaving the matter, as at present, to the discretion of the trial judge, or postponing the coming into force of Clause 33 until some unspecified future date.
The Home Secretary does not have a monopoly of wisdom. No one does. But he and his colleagues have decided that these provisions are appropriate and necessary to restore public confidence. I see no reason why Parliament should refrain from enacting Clause 33.
§ 10.45 p.m.
§ Earl Russell
The principles at stake in this debate are about as big and as good as principles can be. On the one hand, there is the need to protect those who are victims of superior power; on the other, there is the need of the accused for the best possible defence and for the 1398 presumption of innocence while that defence is conducted. Both are the kinds of interest that one might be tempted to describe as paramount. But one cannot have two paramount principles. That is the ground of the debate.
One could approach the debate in one of two ways. One could argue about which of these principles is more important. I am extremely reluctant to take that approach because a decision in favour of either on a question so big would, I think, tip the balance of justice quite inadmissibly one way or the other. I should therefore prefer to approach the debate by asking which of these principles is likely to be more damaged by a decision against it in this case.
I am in total agreement with my noble friend Lord Thomas of Gresford that one cannot conduct a trial on the assumption that the accused is a rapist. My noble friend knows, and I think the Committee knows, perhaps rather better than I might have wished, that that is a principle for which I have in the past contended. What is not quite so widely known is that I have not only attempted to defend a male pupil unjustly accused of rape but have also advised no fewer than three female pupils who had been victims of it. I think I can claim to have tried, within my limited sphere, to apply the principles of natural justice and to hear both sides.
It is notoriously difficult to persuade women who have been victims of rape to take their cases to court. I advised all three of those women to do so. I mention the cases now only because I believe it is too long ago for there to be any risk of their being identified. I was successful in one case out of the three in which I advised the women to take their cases to court. The first advice I gave to the woman was: "If you go to court, you do not do it for your own sake, you do it for the sake of the next woman who comes along". When she came out of the witness box, the first thing she said at the beginning of an hour-long international telephone conversation was: "I am extremely glad you gave me that advice. It was true".
Going to court to make this kind of complaint is painful and difficult at the best of times. Discouraging women from coming forward is distressingly easy. We are told that there are only two such cases of the kind complained of. So far that is true. The risk of copycats is real. I would not mind placing a bet that, if the evidence were discoverable, the number of women who have already been deterred from coming forward by the very considerable publicity given to those two cases would probably be found to be several hundred times that number. That is a real blow to the interests of justice.
The noble Baroness, Lady Mallalieu, said, perfectly correctly, that some women are not deterred from coming forward and from the confrontation. That is true. But, with respect, I do not think that that is good enough. To say that some people can get over the hurdle is not to deny the allegation that the hurdle may be placed too high in the first place. The form of the noble Baroness's statement conceded that there are many women who are deterred. I therefore hope that we can take that as common ground.
1399 What of the effect that this provision might have on the rights of the accused? If it seriously damaged the interests of the accused, that would clearly be a fatal objection. Again I turn to the words of the noble Baroness, Lady Mallalieu. She said that most accused people had the good sense to use a trained advocate. I do not think that people who use a trained advocate necessarily handicap their defence. Many things have been said in criticism of lawyers—though not by me—but I do not think it has ever been said that, as a general principle, those who employ lawyers are less likely to be acquitted than those who do not. In fact, it is a regular proverb that a barrister who conducts his own defence has a fool for his client.
On one memorable occasion, a highly colourful public figure—whom I will not name in deference to the Rules of Order—was arrested for driving at 120 miles per hour on a motorway. When the case came to court, The Times rather prudently said "Mr. So and So, who is a barrister, conducted his own defence". The said person lost the case—as indeed one might have expected. I do not think the litigant in person—by doing it that way—necessarily increases his chances of acquittal. If he employs an advocate, his chances of acquittal may be increased.
The other point which deeply concerns me is that we misunderstand rape if we take it simply as a sexual offence; it is more an offence of violence than a sexual offence. There is a very real risk—more than in any comparable type of crime that I can think of—that the sheer act of cross-examination may be used as a way of repeating the offence. It is that point about the accused being allowed to cross-examine which really sticks in my gullet. In these cases I think that he does not do it in the hope of an acquittal; he does it in the hope of inflicting future pain. That is something I really do not like.
I have read the directions of the noble and learned Lord, Lord Bingham. They are good directions. But the difficulty with any attempt to control the behaviour of a cross-examiner by judicial direction is that one cannot know what question will be asked until it is asked. When one reads cases in the very different American atmosphere, one is constantly reading reports that "So and So should be stricken from the record". Once a question has been asked, even if the cross-examiner is restrained, the shock or pain created is already there—it is too late to undo it—and the deterrent effect remains on any future person who may wish to complain, even if the question is ruled out of order.
My noble friend Lord Thomas of Gresford drew attention to the risk of people refusing to instruct. It is indeed a risk. So is the risk of people refusing to plead. One cannot stop them doing that; they do it at their own risk. If they wish to do it, they have to be free to do so, even if they know that they suffer from it. Nobody can force the accused to act in his own best interests; we can only do everything we can to make it possible for him to do so if he wants to. I believe that employing a trained advocate normally would be in his best interests.
1400 We have here two good principles in conflict. I believe that less harm is done to either of those principles by the adoption of the clause than by its rejection.
§ 11 p.m.
§ Lord Bingham of Cornhill
Your Lordships are all agreed that Clause 33 is directed towards an abuse—but it is an abuse that has only been demonstrated to occur on two occasions; no one has so far unearthed any other examples. Following these two very highly publicised cases, everyone feared that there would be copycat examples. There have not been. Your Lordships know that in the second case the Court of Appeal did all that it possibly could to strengthen the arm of judges, and to make it plain to all concerned that they had the power to stamp on this abuse. There has been no further example.
Because it is an abuse, the noble Baroness Lady Mallalieu, the noble Lord, Lord Wigoder, and I have tabled an amendment which recognises that if the guidance given by the Court of Appeal proves ineffective something more needs to be done. We do not say, or invite the Committee to say, that we should get on with it, that it is not too bad and we can put up with it. We recognise that if the abuse continues something must be done. But we must hope—at present we have every reason to believe—that the advice that has been given will prove to be effective. As has been pointed out, two years have passed without further copycat examples. We urge the Committee to accept that if the advice proves to be effective it is unwise to introduce a measure that deprives the court of discretion to control its own proceedings in the interests of justice—after all, that is what the judge is there for—and involves the appointment of a legal representative who is not responsible to the accused and very probably is not in receipt of instructions from him.
I believe that I take words out of the mouth of the Minister when I say that no one can cross-examine efficaciously and professionally without instructions. That is true. These are not technical points; nor are they an example of judges defending their turf or of amour propre. These questions are related directly to the administration of justice. Those of us who hope that it will not be necessary to bring this provision into force do so because we believe that it opens the door to the risk of unjust convictions. We believe that the jury will not have heard the complainant appropriately cross-examined. It also opens the door to the risk of unjust acquittal for the reason given by the noble Lord, Lord Wigoder; namely, that the jury may feel that the defendant has not had a chance.
It is no answer to say that in order to find himself in this situation the defendant needs to be awkward, truculent and stupid. He may be so, but it is not a crime under the laws of this country to be awkward, truculent and stupid, and certainly not a crime for which he may be sent to prison for many years on end.
I have never suggested in this House or anywhere that the provision is contrary to the European convention. The argument of the noble Lord, Lord Lester, is one that I readily accept. But it is not so long since what gripped 1401 the popular press and rightly engaged the attention of your Lordships was the series of unjust convictions which were a blemish not simply on the criminal justice system but on our national life. This House must act at all costs to avert the risk of miscarriages of justice. It is for that reason that I, in company with the noble Baroness and the noble Lord, believe it to be urgently important that this provision should not be brought into force unless and until it is clearly shown by practical experience to be needed.
§ Baroness Lockwood
I had not intended to participate in the debate this evening. I shall be brief. As I listened to the debate I wondered what women who had been victims of rape would feel on hearing a report of tonight's proceedings. I am quite sure that many of them would be deterred from taking their cases to court. The noble and learned Lord the Lord Chief Justice said that one wanted to avoid unjust convictions. Of course that is so. One understands the sincerity of noble Lords who have defended the right to a fair trial, but what about the woman who is afraid and deterred from taking her case to court? That has been a common occurrence in the past and one does not want it to continue in future.
I think that it was my noble friend who said that the accused may not receive a fair trial because he refused to appoint an advocate. That would be his choice. The accused would be able to defend himself to the point of cross-examining the woman who was bringing the case of rape. Like the noble Earl, Lord Russell, I believe that if there is to be a balance it should be on her side. Under this clause, there is the possibility of a fair trial without the accused being able to cross-examine the victim in the way that occurred in the two cases referred to. I believe that the majority of women in the country would want this clause to stand as it is.
§ Baroness Kennedy of The Shaws
The Lord Chief Justice spoke of the great concern about miscarriages of justice. I think that many women in this country believe that miscarriages of justice take place all too often when it comes to the trial of rape.
I believe that an important moment has arrived with this legislation. The Government seek to strike the balance between human rights and civil liberties. It is interesting that it is happening now because we are introducing human rights legislation into this country. That poses an intellectual challenge to us as lawyers in the courts of thinking a different way. Some of my colleagues from the criminal Bar may somewhat lag behind in their consideration of human rights principles.
As the noble Earl, Lord Russell, said, in consideration of rape we necessarily have a tension between two principles: between the human rights issues raised on behalf of the complainant and the civil liberty issues of protecting defendants' rights. The happy resolution found here is charting a very subtle course between those two positions. We are not abandoning here the rights of defendants to a fair trial, of proper representations, to be tried to a high standard of proof, and that they are considered innocent until proved guilty. Here we have the charting of a course between 1402 inflexible legislative rules and wholly untrammelled judicial discretion. We know that the former threatens the rights of defendants and that the latter ignores the needs of complainants. But here one has a resolution which seeks to track a middle course. I suggest that the amendments are not taken into consideration by the Minister.
The noble Lord, Lord Thomas, spoke of the intolerable effects of conviction for rape. I agree with him. It is terrible if there is a miscarriage of justice. But in considering that, we also have to have in mind the intolerable effect of intimate cross-examination on a woman if she has been violated and if that cross-examination has been conducted by the person who violated her. The noble Earl spoke effectively about that balancing act. We have to bear that in mind. That is the failing by my colleagues from the criminal Bar.
Sometimes cross-examination can contain menace even when it is conducted without a threatening tone. I was surprised at the suggestion that it might be a good thing if a husband or former husband were able to cross-examine his wife where there is an allegation of rape. That is precisely the kind of circumstance where there can be intimidation and a woman can withdraw her complaint because of fear of what might follow on conviction.
I have acted on behalf of the accused in many cases of rape. I have also been involved in advising those who have been victims of rape; for example, in seeking compensation from the Criminal Injuries Compensation Board. I was indeed the lawyer to whom the noble Earl, Lord Russell, turned when his student was falsely accused. My advice was that which I believe any criminal lawyer, believing in the system, would give; namely, that it would be wrong for him to be asked to leave his university without a trial and that he should insist that the case went to court. That was done in that case and he was properly acquitted.
In the same way, I have to balance my concern on behalf of women with that on behalf of defendants. I have always resisted the demands of some of the women concerned about rape cases that I should never defend in such trials. I have always believed that in my role as a lawyer I should abide by the cab rank principle and acknowledge the experience which comes from acting in such cases. I, too, know the suffering that flows from women feeling the loss of justice and the way in which that leads to a loss of confidence in the criminal justice system generally. I know that from speaking to women's organisations throughout the country. There was a general sense that such cases do not take account of the pain and anguish that women experience in the courtroom.
It is interesting that the Lord Chief Justice said that there had been only two cases, and yet, in making submissions to this Committee, both the noble Baroness, Lady Mallalieu, and the noble Lord, Lord Wigoder, spoke of two different cases, which were obviously not the ones reported so heavily in the press. They spoke of defendants acting for themselves and cross-examining the victims. The two most recent cases were shocking. 1403 But over the years there have been other shocking cases. There will continue to be such cases if steps are not taken.
I take great pleasure in the fact that this Government have sought to act in securing the confidence of women in the system. It is my belief that this clause does that and also the later clauses which seek to reduce cross-examination on sexual history. We have to see the context. It is about the mythology and the stereotyping that go into these cases and the way in which judicial discretion has not protected women in the past. I say to my noble friend Lord Wigoder that eight questions are seven questions too many of the victim in a case of this kind. That does not speak too well of judicial discretion if matters are left as late as that before there is an intervention. This is a good clause and I commend it to the Committee.
§ Lord Cope of Berkeley
After such an expert and experienced debate I am hesitant to intervene, but that is not going to put me off. The noble Lord, Lord Thomas, said that he was not speaking for his party, which subsequently became apparent in the debate. I do not believe that this is a party matter. We all speak for ourselves, I certainly do. In any event, I believe that our aims in this matter are the same. They are to balance the very difficult dilemma clearly put to us by the noble Earl, Lord Russell. There is the need to protect women from humiliation—particularly from the terrible experiences mentioned in the cases which have been referred to—in contrast to the need not to prejudice a fair trial. That is a very real and difficult dilemma for us. It is a difficult choice to make.
On reflection, having heard the debate, I prefer the amendment in the name of the noble Baroness, Lady Mallalieu, supported by the noble and learned Lord the Lord Chief Justice and the noble Lord, Lord Wigoder, to those in my name. But all the amendments go in the same general direction.
The first question to which we must give attention is whether there will be copy-cat cases. We had some reassurance in respect of that from the noble and learned Lord the Lord Chief Justice which I found reassuring. In any event, the reason that I prefer Amendment No. 92 is that it provides protection against the possibility of further copy-cat cases.
But the next and more difficult question is as regards how we avoid other women being deterred by the publicity that there was for those two cases in particular and the general publicity surrounding them. It is extremely important to try to do that. It is clear that many women are understandably deterred from pursuing cases and that is not in the interests of justice. It seems to me that that can be matched only by publicity in the opposite direction. I doubt whether our agreement to this clause, as opposed to the rest of the Bill, will do much in relation to that publicity. It is a much larger matter.
The next question which we must address is whether the accused would be denied, by this clause, the opportunity to defend himself properly. I accept entirely the arguments that have been used about the European Convention on Human Rights. As I 1404 understand it, as explained in a letter that I too received from the Minister after Second Reading, that seems to be satisfied provided that a court-appointed lawyer can cross-examine. That provision is essential to the ECHR. But obviously that is a matter which we shall discuss later in the Bill.
The final question is whether, if we do not agree to the clause as printed in the Bill going onto the statute book, we shall have done enough to protect women against the humiliation that there was in those publicised cases.
The first judgment we must make is whether the Court of Appeal's actions have so far been sufficient. So far as we can tell, in the time which has elapsed since the Court of Appeal made its decisions, they have been sufficient to protect women. But, in any event, within the Bill itself, in other clauses, we are going much further in relation to protecting women in that situation. We have already discussed the clause dealing with special measures—screens, videos and so on—which can be used to protect women, in this case, during cross-examination. On another occasion, we shall discuss the question of consent and so on which is dealt with in later clauses.
Therefore, if we do not agree to this clause unamended, it is not that we are doing nothing to address those problems. On the contrary, we are taking some extremely effective steps to address them.
That brings me back to the question of whether the accused will be denied the opportunity to defend himself properly. It is a difficult question, but at least for the time being I come down on the side of Amendment No. 92. We should have the clause on the statute book as a fall back in case the actions that have already been taken by the Court of Appeal and those that we are taking in other parts of the Bill do not prove to be a sufficient safeguard in the matter.
§ Lord Williams of Mostyn
I am grateful for the tone and content of everything that has been said. I prosecuted and defended in rape cases and I know that the memory never leaves one in a way that is different from other serious cases. The noble Lord, Lord Cope, is a generous-hearted man, but he says that women may be put off from complaining of rape. I do not believe that that grasps the true dimension. I do not believe that it begins to describe the deep, bitter distress and humiliation that women feel at the prospect of—I underline that—being cross-examined by the alleged perpetrator.
The noble Baroness said that I promised to look at these matters with an open mind and I continue to do so, but the more I have listened to the arguments tonight the more I have been fortified in my view, which I did not reach lightly, that Clause 33 is correctly included in the Bill.
The noble Lord, Lord Cope, also said that there might be a danger of a man being unable to defend himself properly. That cannot arise. The only prohibition is that he shall not be allowed to cross-examine the complainant in person. These are very important matters. There is no question that a defendant cannot 1405 defend himself properly. He can have a court appointed lawyer for the appropriate part of the cross-examination—that is the prohibited part of Clause 33—he can have the lawyer, at legal aid, of his reasonable choice to defend himself throughout. That is no inhibition against defending himself properly.
We have already come to the policy conclusion, which none of your Lordships from any quarter of this Chamber has challenged tonight, that in cases involving children the benefit, as it is, of allowing a defendant the freedom to conduct his defence in the way he chooses does not outweigh the distress of being cross-examined by an unrepresented defendant. No one has raised a question about that tonight and I fortify myself, I believe open-mindedly, with the arguments put forward by the noble Lord, Lord Lester, and the noble Earl, Lord Russell.
What perhaps has not been grasped tonight is the very powerful deterrent—my noble friend Lady Kennedy made this point—that the possibility of being cross-examined by a defendant can have on witnesses considering those agonising circumstances described by the noble Earl, Lord Russell, as to whether they can face giving evidence in court. I recognise—I have said it often enough in this House—that not all defendants are guilty, but they have then to contemplate the moral burden of dreadful wrong going unpunished because a system is skewed against them.
The noble and learned Lord the Lord Chief Justice said that it was not a question of judicial amour propre. I entirely accept that. I have never suggested it, nor to my knowledge has any member of this Government. He said that there had been no other cases. I respectfully dissent from that view. There is abundant material to show that there have been many other cases; not cases which have gone to the Court of Appeal Criminal Division, but cases of women who simply cannot bear the prospect of being cross-examined by their alleged criminal violator.
The noble and learned Lord the Lord Chief Justice said that we must avoid the risk of miscarriages at all costs. I do not believe that he and I can agree on that. I do not believe that "at all costs" falls into the equation here. The trial process should not be about allowing witnesses, particularly in this specific class of case, to be abused by defendants who want to take the opportunity to cross-examine, badger, humiliate or intimidate the alleged victim. And it is a crime of violence. It is sexual, physical violence on the occasion of the attack; brutal humiliation and verbal violence in the court setting. They are not, qualitatively, enormously different in some ways. The slightest chance that that can happen in the future, no matter how controlled the questioning, is putting women off coming to court at all. They ask police officers, they ask the CPS. "Is it still a prospect?" and the honest police officer, trained in this class of work, and the honourable servant of the Crown Prosecution Service have to say that it is a possibility—because it is.
I do not consider that husbands should be given the chance to confront their wives in this way if they are accused of rape. I thought myself that a married woman 1406 was no longer her husband's chattel. We have already decided—I repeat because no question has been raised about this—that a father accused of incestuous sexual abuse by his daughter, is denied that opportunity. We did that on policy grounds, which I for one am perfectly happy to defend, defend and defend again.
Of course the witness's evidence must be tested and of course the defendant's unique knowledge of a witness can help to uncover a false complaint, but that can be done fairly; it can be done properly; it can be done in the defendant's interests by a legal representative, properly instructed, who will stick to the issues at trial and is going to be professionally bound by obligations which make judicial control of the trial efficient, expeditious and fair. The prohibition does not curtail the freedom of a defendant to choose what defence should be put forward, or what questions within the proper limits should be asked of a witness. It does stop him taking the opportunity of further humiliation.
I was going to say just a word or two justifying my thumbprint on the front of the Bill which the noble Lord, Lord Lester, kindly pointed to, but it seems there is no question about that. The certificate, at least in the context of Clause 33, was properly given and I will not deal with the cases in the European dimension which the noble Lord has referred to.
May I take an illustration? At the moment, under the general common law rules, if a defendant defends himself and the judge gives him directions that he must not ask this or that or must desist from this line or not continue with that, the only power the judge has, should he refuse, is to put him down in the cell. The judge has no present power to appoint a court authorised representative—none at all—and therefore in the scheme of this Bill, we are giving additional protection in that context to a defendant who is otherwise not represented. Of course some defendants will be wholly unco-operative: they are at the moment in a vast number of cases. They know the game. They cannot make a statement from the dock as Mr. Stonehouse could but they can still make a concluding speech which is supposed to have some relationship to the evidence which was given. Of course the complainants can play the system as of their choice.
The judge trying the case is perfectly capable and competent, in my experience of the modern judiciary—I say that without presumption—of saying calmly to the jury, "The reason why this defendant cannot ask questions of this woman is because Parliament says he is not allowed to. That is the law of our country. He is not allowed to cross-examine children: that is the law of our country. Whatever you think of it, members of the jury, you and I are bound by it and you are bound to abide faithfully and loyally by your oath." There is no difficulty there if the judge tries the case properly, as they do.
I return to what the noble and learned Lord the Lord Chief Justice said: there has been no further problem, for the reasons outlined by the noble Baronesses, Lady Kirkwood and Lady Kennedy, as well as by the noble Lord, Lord Lester, and the noble Earl, Lord Russell. I profoundly disagree that there is a further problem, 1407 and that it continues with us. The guidance of the Lord Chief Justice in the two leading cases was of course extremely important in setting down what judges have to do and what judges can do to control the proceedings. There was the emphasis that judges should step in to stop irrelevant, repetitive or humiliating questions, and that in certain circumstances the defendant can be stopped from questioning altogether.
I simply say this. That was the law long before those two cases were tried; whether by way of obligation on a member of the Bar or an unrepresented defendant, that was the law. These cases did have enormous publicity. Yet women who are in the position of the students of the noble Earl, Lord Russell, are not going to be satisfied on the next occasion when he gives them the moral tutor's guidance, "Ah, all will be well with you because we have got two guideline decisions from the Court of Appeal, Criminal Division". I am sorry to say that life is not like that.
We have thought carefully about this. We tried to balance the two rights and the two possible great wrongs of which the noble Earl spoke. It has not been an easy decision for any of us. Many of those concerned in making the decision have a lot of experience in one way or another of practice in various courts. It was not something we rushed into; we thought about it very carefully. The more I have listened to the arguments this evening—arguments which spanned the whole spectrum of possible debate—I regret to say to some Members of the Committee, the more abundantly I am sure we have come to the right conclusion, which, in the nature of things, is a compromise; but it is a right, just and proper one.
§ 11.30 p.m.
§ Lord Thomas of Gresford
I must express my profound disagreement with the noble Lord, Lord Williams of Mostyn, when he queried the phrase used by the noble and learned Lord the Lord Chief Justice that it was necessary to avoid miscarriage of justice at all costs. I consider that a single miscarriage of justice—as the history of the past few years has shown—carries a disproportionate weight and affects the confidence of the public in the criminal justice system of this country in a deep and significant way.
My noble friend Lord Lester, arguing from principle as he does, because there is in fact no decided case of the Court of Human Rights which supports his proposition, referred to the proportionate principle and sought to balance Article 6.3 against Articles 3 and 8; that is to say, the human rights of the defendant to defend himself against the rights of the complainant who brings forward the complaint. Similarly, my noble friend Lord Russell referred to the balance that has to be struck between competing principles.
However, neither of my noble friends put into the balance the right of a person not to be wrongly convicted. It is more than a right to defend himself that is in that side of the balance when one is considering this problem; there is also his right not to be wrongly convicted. In the other side of the balance, if the position is as the history of the past two years has shown—that 1408 no complainant has been put through this ordeal—and if judges have been given full and proper instructions as to how to deal with this situation should it arise in the future, there is nothing of significance to set in the balance against the right of the defendant not to be wrongly convicted and his right to defend himself.
My noble friend Lord Russell drew attention to the fact that it is painful and difficult for a complainant to go through with her complaint; and so it is; I have no doubt about that—if the complaint is true. Indeed, if it is true, I would add that it requires determination and consistency for a complaint to go forward. But, if one is carrying out a balancing exercise, against that painful and difficult task one has to set the dire consequences to an individual if he is wrongly convicted. A rape case in which I was involved last year resulted in a 14-year sentence of imprisonment for the defendant. That is a considerable period of time for the loss of liberty, followed as it inevitably will be by further restrictions upon that defendant's freedom.
We cannot proceed to make the law as if every complaint were true and as if the complainant had been violated. That is not the case. False complaints of rape are made for a variety of reasons: sometimes due to quarrels over money, the children, another woman or jealousy. All sorts of reasons lead to false complaints being made. It should be borne in mind that the problems of bringing forward complaints and the difficulties to which reference has been made may deter false complaints as well as those which might be properly founded. There is a deterrence not simply for people who are making true complaints and who have the benefit of the force of truth behind them when they make such complaints; a deterrent factor also operates when a person makes a false complaint.
The Minister said that there is no question but that a defendant can defend himself properly. I disagree. I can see that the possibilities of a miscarriage of justice are inherent in Clause 33. However, for the moment, I beg leave to withdraw my amendment, although I may return to it at a later stage.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 91 not moved.]
§ Baroness Mallalieu had given notice of her intention to move Amendment No. 92:
§ Page 24, line 10, at end insert—
§ ("( ) This section shall not come into force unless and until the Secretary of State has certified that, in his opinion and in the light of experience gained after the passing of this Act, it is necessary to bring the section into force for the reasonable protection in criminal proceedings of witnesses who are complainants of sexual offences.").
§ The noble Baroness said: I thank those noble Lords who have spoken in an interesting debate, and particularly those who supported Amendment No. 92, especially the noble Lord, Lord Cope, who changed his allegiance to support it.
§ The aims of all Members of the Committee who spoke were the same: to avoid miscarriages of justice. We all agree that they occur not just when innocent men are wrongly convicted, but also when guilty men escape 1409 justice. Several Members of the Committee, on both sides of the debate, spoke from great experience of fears that the well intentioned provisions of Clause 33 contain potential danger to cause miscarriages of both types.
§ I understand the concern of noble Lords, and in particular the difficulties that are faced by a police officer with a complainant who expresses concern about whether she is likely to be cross-examined by her attacker if she goes to court. I think that the Minister has temporarily forgotten that Clause 35 would enable the officer or person advising her to tell her that if the quality of her evidence was likely to be affected by her concern about such cross-examination, the prosecution could apply to the judge and a prohibition on that cross-examination could be made. The Bill contains other provisions which afford protection to those particularly vulnerable witnesses.
§ I regret to say that I do not believe that many of those who have been the subject of serious sexual attack will not still be deterred, even following the passage of this Bill. That is because I anticipate that the main deterrent is that people are reluctant to come to court, to relive the experience in giving evidence and to be cross-examined by anybody, particularly by a skilled 1410 barrister. I do not believe that the provisions of Clause 33 will lead to more people coming forward than do so now. However, other provisions in the Bill could make a very real difference.
§ I am sorry that, in the course of this debate, the usually open mind of the noble Lord, Lord Williams, has been seen to be gently closing; indeed, by the end of what he has just said, it has been seen to be firmly fixed. Nevertheless, between now and Report stage, I hope that all those of us who listened to what has been said can reflect upon it. It is possible that I may find it necessary at a later stage to return to what I consider to be a fundamental change to our justice system. In the meantime, I shall not move the amendment.
§ [Amendment No. 92 not moved.]
§ [Amendments Nos. 93 and 94 not moved.]
§ Clause 33 agreed to.
§ Moved accordingly, and, on Question, Motion agreed to.
§ House adjourned at twenty minutes before midnight.