HL Deb 08 February 1999 vol 597 cc11-27

3.7 p.m.

Lord Williams of Mostyn

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

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

On Question, Motion agreed to.

House in Committee accordingly.

[The PRINCIPAL DEPUTY CHAIRMAN OF COMMI'FIEES in the Chair.]

Clause 34 [Child complainants and other child witnesses]:

[Amendments Nos. 95 to 100 had been withdrawn from the Marshalled List.]

Clause 34 agreed to.

[Amendment No. 101 had been withdrawn from the Marshalled List.]

Clause 35 [Direction prohibiting accused from cross-examining particular witness]:

[Amendments Nos. 102 to 107 had been withdrawn from the Marshalled List.]

On Question, Whether Clause 35 shall stand part of the Bill?

Lord Ackner

I invite the Committee to say that Clause 35 should not stand part of the Bill. The clause deals with directions prohibiting the accused from cross-examining witnesses of no particularly identified kind. It is common ground that child witnesses merit special provision. In Clause 33, the Government—in the teeth of judicial opposition—have concluded that in rape cases there should be an absolute bar on the accused personally asking questions. It was always thought that if that kind of clause was introduced it would soon be followed by a more general provision that gave similar power but inevitably involved the discretion of the judiciary, since otherwise it would be quite impossible to support it. I submit that the Government are over-egging the pudding. Having achieved in Clause 33 an absolute bar in rape cases, the temptation to extend this further should be resisted.

It was strongly contended by those who opposed Clause 33 that there was no evidence of any demand for that provision. Since May 1997 there have been no cases in which complainants have been abused or hectored and in which the courts have had to intervene to exercise the powers that the Lord Chief Justice identified in the case of Brown. There is even less evidence to suggest that this generalised provision should be on the statute book, which would no doubt bring with it quite unnecessary complications and delays. I beg to move.

Lord Thomas of Gresford

Special provisions may be required in cases involving sexual offences and children, but there is no case for extending similar provisions, although discretionary, to a vague, broad area of the criminal law such as that provided for in this and the next clause. My objection is to the whole cumbersome machinery laid down by this clause. If one considers this and the succeeding clause, the two pages that encompass these provisions boil down to one sentence: defendants who act in person must not abuse their position. If they do so the judge should intervene.

I believe that a judge in a criminal case is in charge of his court and that the Committee should support him, not seek to impose statutory obligations upon him as if to seek to legislate for every possible circumstance that may arise. Criminal cases vary very considerably in their circumstances from one to another, and the only person who is capable of coming to a fair and just decision at any particular point in a case is the judge who hears it. He is apprised of all the facts, understands the state of the case and the point at which it has arrived and, in the light of that, can properly exercise his discretion. Should he be wrong and a defendant is convicted in those circumstances, there is an appeal procedure so that the exercise of that discretion—it is not interfered with very often—may be reviewed by a higher court. But the more one seeks to introduce these statutory fetlocks around judicial discretion the greater the risk that miscarriages of justice will occur. For those reasons I support the opposition to this clause moved by the noble and learned Lord, Lord Ackner.

3.15 p.m.

Lord Cope of Berkeley

I am also sympathetic to the opposition to this clause and the one that follows it. The noble and learned Lord said that he was unaware of any evidence of the need for provisions of this kind in cases other than rape avid serious sexual assault, which are dealt with elsewhere. We dealt with those matters on the previous Committee day. I should like to give the Minister the opportunity to put before the Committee the evidence than this clause is necessary. Can he suggest how many cases have arisen in which the quality of evidence has been seriously diminished by the fact that the cross-examination of witnesses has been conducted by the accused? In asking that question I am conscious that no doubt lawyers initially will be inclined to believe that any cross-examination by them is better than that conducted by the accused and, that the quality of cross-examination, and hence presumably the quality of the evidence, will be better. I have some sympathy with that view, which may not necessarily be only the professional lawyer's view. But if the quality will always be diminished by the accused's cross-examination of a witness in comparison with cross-examination by a lawyer the clause looks a little peculiar.

I am also unclear as to the kind of cases envisaged in this provision. We are not (healing with rape and other serious sexual offences as set out in the previous clause and dealt with elsewhere. Presumably, we are dealing with burglary, assault and other offences of that kind. It appears to me and to others such as the Law Society that the cross-examination of witnesses in those cases is less likely to lead to difficulties. But the wording of the test in the clause appears to be questionable. The word "diminished" is entirely unqualified. The quality of the evidence does not have to be diminished seriously. It can be diminished by a very small amount. If so, it is diminished. It does not have to be likely to be seriously diminished but simply a little bit degraded from what it would otherwise have been.

Later one sees, that it would not be contrary to the interests of justice". That is also a rather weak and negative test. The judge does not have to consider that it is in the interests of justice but simply that it is not contrary to the interests of justice to prohibit the accused from otherwise exercising his normal rights.

Slightly further on the definition of the quality of the evidence that may or may not be diminished brings in Clause 16(5) which makes reference to completeness, coherence and accuracy. In order to judge that one must make a judgment as to how the witness will react to being cross-examined by the accused as opposed to counsel. That is a difficult judgment to make at any time. Given that the degree of diminishment of the quality of the evidence to trigger this provision can be only very small, I believe that the wording is rather dangerous and that these detailed points strengthen the overall case made by the noble and learned Lord, Lord Ackner, and by the noble Lord, Lord Thomas of Gresford.

Lord Renton

I agree with those noble Lords who have complained about the apparent attempt to direct the court as to how to exercise its discretion. lf subsection (2) of Clause 35 were left alone I believe that all would be well. However, subsection (3) lists half a dozen matters that the court must bear in mind when exercising its discretion. However, other matters may arise which may also be relevant. To have the clause applying to the way in which these difficult cases are to be handled is wrong. If subsection (3) were left out it would help very much.

Lord Williams of Mostyn

First, I shall deal with the observations of the noble Lord, Lord Renton. As I understand it, he is content with the broad scheme of subsection (2) but is troubled about the possible constraints on judicial discretion in subsection (3). I think that I fairly paraphrase.

One needs to bear in mind that all judicial discretion is to a certain extent circumscribed whether by statutory or appellate directions or indications. In this context the provisions in subsection (3) are not exclusive. I take the noble Lord's point entirely. In other words, he says quite rightly, there may also be other matters. I agree. That is why subsection (3) is cast in its present form. It states: In determining whether subsection (2)(a) applies in the case of a witness the court must have regard"— I underline these words— in particular"— making it quite plain that there are other matters which could legitimately, indeed properly, be taken into account when the judge comes to his conclusion. I hope that I have been able to reassure the noble Lord.

On the general matters, the noble and learned Lord, Lord Ackner, is, I think, against this provision as a matter of fundamental approach. The noble Lord, Lord Thomas of Gresford, says that there is no serious objection in principle; it is simply a cumbersome way of dealing with matters. The noble Lord rightly says that if a judge gives a direction which is so significantly unjust in the interests of the defendant as to cause the conviction to be rendered unsafe—again I paraphrase, but I think fairly—the appeal could be allowed. That is so. But that does not cater for the position where the witness is so vulnerable to cross-examination personally by the defendant that the evidence given is not the: best evidence available. There is no appeal in those circumstances.

We believe that there are some cases—I shall dome to the illustrations which the noble Lord, Lord Cope of Berkeley, wanted me to give—where Clauses 33 and 34 do not apply. We have traversed those at some length. They are cases in which the witness may be more: likely to give his or her best evidence if cross-examined by someone other than the accused. We believe that the interests of justice are best served by putting good quality evidence before the courts. By "good quality" I seek to convey evidence in terms of coherence, completeness and accuracy. To strive for the best evidence is not to bring about injustice. Quite the opposite.

The sort of offences one might have in mind would be stalking, prolonged personal harassment or abuse with someone who may be genuinely vulnerable. For instance, if one has abuse or harassment on a continuing basis against—shall we say—an elderly person living alone, his best evidence may not be given if the alleged perpetrator is cross-examining. That is a category of case. But one does not simply have to consider a category of case. One needs to look at categories of witnesses. I give one illustration. There may be witnesses who could be particularly vulnerable to the defendant in person cross-examining. That vulnerability may well bring about not the best available evidence but evidence which simply conceals or obscures the truth rather than revealing it. It may well be a witness, for instance, with a learning disability. All we are doing in Clause 35— it is simply an empowerment of the judiciary; I stress that—is to give the court power either on an application or of its own motion, respectively subsection (1)(a) and (1)(b), to prohibit an unrepresented defendant from cross-examining witnesses in those cases which are not already covered in Clauses 33 and 34.

But there are constraints here. By subsection (2) the direction can be given only if it appears to the court, that the quality of evidence given by the witness on cross-examination is likely to be diminished if the cross-examination … is conducted by the accused in person"— no judge will regard a de minimis diminution as a foundation for his jurisdiction here— and"— we have the overarch— would be likely to be improved if a direction were given under this section"— and the further overarch— and that it would not be contrary to the interests of justice to give such a direction". So what one is doing is to give to the judge at trial a discretion. It is a wide discretion.

I reiterate, if I may, the points I made in answer to the noble Lord, Lord Renton. Subsection (3) simply points the court's mind to certain features. They are not exclusive features. The judge has to carry out the balancing exercise which all judges do every day when they rule on admissibility of evidence, for instance. It gives the judge the discretion to take into account in particular the aspects covered in subsection (3)(a) to (f) inclusive but also any others that may be relevant.

Subsections (2) and (3) set out the criteria. The prohibition is to prevent the defendant's personal cross-examination. He will be able to have cross-examination, of course, through a legal representative. We do not believe that that is either contrary to the interests of justice or breaches any European convention right. It is not on the basis that all lawyers cross-examine better than all defendants. It is simply a desire, which I believe to be long overdue, to make sure that witnesses in these vulnerable cases will be able to give the best evidence. If the best evidence leads to a proper conviction, that is a just outcome. If a failure to acquire in court on oath the best evidence leads to a wrongful acquittal, that is not justice. It is unjust. I suggest that it is one of those injustices which sometimes leads to the disenchantment and alienation of the public.

I repeat, if I may, because it is important, that the court must be satisfied that nothing in the circumstances of a particular case would make such a ban contrary to the interests of justice. The criteria are set out. I do not think that it is helpful to the Committee to recite them again. I give the reference: page 25, subsection (3)(a) to (f). We believe that these provisions—they will not be used every day in every court—should be available for the judges to exercise their discretion on what I stress remains a judicial basis.

Lord Wigoder

The Minister repeatedly referred to "the judge". Have I misread Clauses 35 to 37? Do they not apply equally to magistrates' courts proceedings? Is it not for the magistrate to follow through these complicated procedures to decide whether the questioning may be unfair, even in the most trivial of offences? In a large percentage of trivial offences the defendant represents himself in the magistrates' court. Has the magistrate then to go through all these procedures to decide whether the unrepresented defendant can have legal aid in order to ensure that justice is done?

Lord Williams of Mostyn

The magistrates sit judicially. That is why the word "court" is used in the subsection. But magistrates have to make rulings which are sometimes difficult. They have the advantage of legal advice from their clerk. There is nothing novel in this. I would expect there to be relatively few cases in the magistrates' court. The noble Lord is right. More than 95 per cent. of criminal cases are tried in the magistrates' courts. But magistrates have to come to these conclusions regularly as part of their judicial work with legal advice that they are given by their clerk which they apply to the facts of the case.

3.30 p.m.

Viscount Brentford

I have friends who have suffered the problem of stalkers and I know how traumatic has been it was for those ladies. Therefore, I support the principle that the court should be able to bar a stalker, for instance, from cross-examining the victim in person. While stalking is not as serious a matter as rape, it is extremely traumatic for the ladies concerned and therefore I would welcome the proposed principle. It is right that in such instances the court should have a discretion to bar cross-examination by the accused.

Lord Thomas of Gresford

If the provisions were specifically directed towards stalking or harassment cases they would be less objectionable. However, the provisions apply across the whole of the criminal law. They could apply for example, to a fraud case in the Crown Court where a person seeks to shelter under the provisions by saying to the prosecutor, "The defendant is my employer. I am feeling very nervous today and I should be grateful if you could ensure that that particular person does not ask me any questions".

Stress is endemic in the judicial process. Everyone in court is under some degree of stress, whether it be the advocates, the judge, the witnesses and, most certainly, the defendant. One cannot avoid stress in the courtroom. The problem with such provisions is that they "cotton wool" witnesses against the proper cross-examination which in our system usually results in the truth becoming known. That is a stressful situation in which truth becomes apparent. If a witness is forever insulated from cross-examination, whether it be from the accused or his representative—that is not suggested here—the truth will not come out. I have an objection to the whole cumbersome machinery of the clause.

Lord Cope of Berkeley

I am grateful to the Minister for setting out in a little more detail the kind of cases and instances in which the clauses might apply. He suggested that the measure related to vulnerable witnesses. Earlier in the Bill we considered the definition of "vulnerable" witnesses and what should be done to protect them by way of screens and so forth. Clauses 16 and 17 set out who are vulnerable witnesses. Will the Minister consider including these provisions in that part of the Bill which covers vulnerable witnesses and provides for other means of protecting them? That might make the clause a little more acceptable than it is in its present blanket form.

Baroness Ludford

I have not been concerned with the Bill, but I have considerable sympathy with the views expressed by my noble friend Lord Thomas of Gresford. The cruse of vulnerable complainants and witnesses is obviously not served by miscarriages of justice on the other side. It is not a gain for one at the expense of the other. Will the Minister say a little more about the clause? He used stalking and harassment as illustrations. As stalking is now a statutory offence, can he be more specific about the offences which are covered? After all, there are strong civil liberty implications. The Government have properly tried to strike the best balance between the civil liberties and rights of the accused and the protection of vulnerable complainants and witnesses in order that they come forward and are prepared to go through the trauma of a trial.

I take the point made by my noble friend Lord Thomas of Gresford about the stress involved in appearing as a witness. There must be a distinction between being prepared to tolerate that stress in the interests of justice and being protected from the traumatic situation of reliving the offence. Can the Minister be more specific so that that balance is properly struck? I have sympathy with the concerns expressed about the clause going too far and potentially damaging the civil liberties and rights of the defendant.

Lord Williams of Mostyn

I did not say that the measure was a protection for witnesses who are stressed. The noble Lord, Lord Thomas of Gresford, said on another occasion that stress is an inevitable experience for anyone who goes into court, from the presiding judge down to the usher. I do not disagree with him. Lawyers who appear in court all the time are more familiar than witnesses, but not totally at ease.

It has been asked in various ways why we do not have a list of offences. The reason is that I sought to indicate the categories of offence and then I thought that I had explained that there were categories of witnesses. Perhaps I may take up the helpful observation of the noble Viscount, Lord Brentford, who spoke about particular incidents of harassment and the fact that the generally female victim of the alleged harassment might be unable to give her best evidence. Thai is right, yes, and it might well be the same for an elderly widow who has been burgled six times by a notorious local thug. The elderly widow living alone has civil rights arid liberties, one of them being that the state ought to secure her safety in her home. If that fails, proper acquittals should be brought about, but also proper convictions should be brought about in whatever the court of trial—the magistrates' court or the Crown Court.

That is not a charier for everyone to say, as in the example of the noble Lord, Lord Thomas, "My boss is the defendant in this fraud case and I feel a little uneasy about my employment prospects". If that application were made by or on behalf of the witness in question, it would not be upheld. One is talking about cases which are severely circumscribed by the provisions in Clause 2. The court has to determine that the quality of evidence given by the witness is likely to be diminished if the cross-examination is conducted by the accused in person; and that it would be likely to be improved if a direction were given under the clause; and that it would not be contrary to the interests of justice to give such a direction.

In answer to the noble Baroness, Lady Ludford, I believe that one cannot have lists of cases. Obviously, one chooses the cases which are likely to give trouble, but one must look at the witnesses. Witnesses may 'well suffer the disabilities of being unable properly to give the best quality of evidence; in other words, that impediment to the functioning of a proper criminal justice system may be infinite. It is not the offence which matters, but the relationship between the defendant and the witness whom he wishes to cross-examine. We are saying that if these tests are established to the proper satisfaction of the magistrates, with the legal advice they receive, or the judge, having considered these matters and directed his mind, the court ought to have the reserve power to direct that an individual cannot cross-examine the witness.

I believe that that:, s a step towards better justice and not an infringement of the interests of the defendant or against his human rights. There is a prosecution and a defence in a case. Of course, the prosecution has an interest as, self-evidently, does the defendant. However, there is a further interest; namely, a public interest that the best quality evidence should be available.

Lord Cope of Berkeley

Will the Minister respond to my suggestion that this clause might be confined to vulnerable witnesses as defined earlier?

Lord Williams of Mostyn

I am so sorry. I did not mean the noble Lord, Lord Cope, any discourtesy. As always, I shall give careful consideration to anything that is said in this Committee, as I shall to what has been said by the noble and learned Lord, Lord Ackner, and what he is about to say in summarising his position. I have always been open to further reflection. I always say "without guarantee". But I can say from my own knowledge that on such questions officials are extremely alert to the fact that we may not have got it right first time. I believe that we have. However, I am sorry that I did not respond more positively to the noble Lord, Lord Cope.

Lord Ackner

The only matter on which I should like the Minister to reflect is that there is no need to give this power by statute. It is already there. A judge, in the control of his court, may say to a defendant, "Your cross-examination is excessively hectoring", or, alternatively, "It is irrelevant. When the jury were out, before you began to cross-examine, I gave you certain advice. If you will not adhere to it then you will not be allowed to ask any further questions. I shall ask the questions on your behalf'. All that seems to be overlooked and perhaps it could be the subject matter of some reflection between now and Report stage. However, at present, I do not press my objection.

Clause 35 agreed to.

Clause 36 agreed to.

3.45 p.m.

Clause 37 [Defence representation for purposes of cross-examination]:

Lord Thomas of Gresford had given notice of his intention to move Amendment No. 108:

Page 26, line 33, leave out ("34 or 35").

The noble Lord said: If Clauses 34 and 35 are to remain in the Bill, this amendment prevents altogether the appointment of a legal representative.

The purpose of the amendment is to ensure that what I regard as the unworkable machinery of the appointment of a legal representative to cross-examine a witness does not apply in these particular cases. However, I do not propose to say any more about it because it is on the next group of amendments that I wish to make my points. Therefore, I shall not move the amendment.

[Amendment No. 108 not moved.]

Lord Thomas of Gresford moved Amendment No. 109:

Page 26, line 34, leave out subsections (2) and (3).

The noble Lord said: The purpose of Amendment No. 109, together with Amendment No. 111, is that if a representative is to be appointed then that representative should not simply be appointed to cross-examine a witness but should be appointed to put the defence case as a whole to all the witnesses who are before the court thereafter.

It seems to me to be suggested that the court may appoint a legal representative to come into a trial. It may then say to him, "All right, you now cross-examine witness X. For various reasons, I have decided that the defendant acting in person should not be allowed to cross-examine this particular witness. I now want you to carry on and cross-examine". That must lead immediately to an adjournment. The issue will then arise whether the representative so appointed should have a conference or consultation with his client in which he learns something about the case; in which he receives instructions as to what the defendant wants to put; and finds out whether the defendant will co-operate with him.

If a defendant co-operates with a court-appointed legal representative, then I suppose that the system can work. But almost by definition, a defendant who is representing himself has rejected the possibility of having a legal representative in the case generally in any event. Therefore, he is in a position in which he will not wish to co-operate. The legal representative appointed by the court will not know what sort of case he must put and which points must be made to a witness. Of course, at the end of the case, when addressing the jury or the magistrates, the defendant will be entitled to say, "I did not want that lawyer to represent me. He has not asked the questions I wanted him to ask. I have been the subject of injustice". In a jury trial in particular, that may well lead to the jury agreeing that it is unjust and acquitting when it should convict. That was a point made at some length in our earlier deliberations by my noble friend Lord Wigoder. The whole suggestion that an outside lawyer can be dragged in to cross-examine one witness is quite wrong.

The effect of the amendments which I propose is that if that machinery is employed, the lawyer will not simply pop in and pop out so that when that witness has been disposed of, he is bid goodbye and the defendant then carries on unrepresented. If the lawyer is called into the case, he should at least stay there and give some assistance throughout the rest of the case. I beg to move.

Lord Renton

I have always thought that freedom was the foundation of our democratic way of life and that our system of justice was intended to uphold that freedom. But Clause 37(3) runs right against that. It would mean that an accused person who did not want to have a legal representative would have one thrust upon him. That does not seem to me to be right.

Lord Cope of Berkeley

Amendments Nos. 109 and 111 seem to me solely to delete the provisions which provide for the accused, faced with the possibility of not being able to cross-examine, at least to consider whether he will willingly have, at that stage, a lawyer appointed by the court to do the job for him or for that matter appointed by himself to do the job for him in regard to cross-examination.

If that provision is to be put into the Bill, it seems to me that what is provided in subsections (2) and (3), which would be deleted by Amendments Nos. 109 and 111, are necessary or at least desirable to give the accused the opportunity to appoint his own lawyer at the last minute, just when he knows that he is about to have that sanction imposed upon him.

The noble Lori Lord Thomas of Gresford, referred also to the point Amendment No. 110—and it seems convenient to discuss that with this group—that when a lawyer is appointed by the court to act on behalf of the defendant who cannot cross-examine for himself, he should put the whole case for the defence. It seems to me that it would be extremely helpful if the lawyer concerned were involved in the whole of the case for the defence, not just in the small part of it which involved the cross-examination in the middle of the case of a single witness who happened to be a vulnerable witness, as we have discussed. It seems to me that that is to ask a very great deal of the lawyer, even if he has the co-operation of the accused.

If we put a Lawyer in that circumstance, then the quality of the cross-examination is likely to be diminished—to borrow a phrase we were discussing earlier—and make it extremely difficult to conduct. But it will he even worse if the accused still does not wish to have a lawyer acting on his behalf. Given that the accused, by definition, is likely to be someone who is anti-lawyer and certainly does not want a lawyer acting for him, it is highly likely that in a number of cases he will not wish to co-operate with the court-appointed lawyer who is supposed to be acting for him.

In those circumstances, counsel will have even more difficulty in conducting a high quality cross-examination and the whole problem is compounded. That is why I tabled Amendment No. 109A, which it may be convenient to include in this group since we have already wandered from the narrow point of Amendments Nos. 109 and 111. Amendment No. 109A suggests that the court-appointed lawyer should only be appointed if the accused agrees to his appointment and therefore some reasonable element of co-operation can be expected between the two.

I realise that if the accused were still to refuse the appointment of a lawyer, then no cross-examination would take place because there would be no lawyer and the defendant would be unable to conduct it himself. That might raise once again the problem of human rights and the European Convention. After all, this whole clause exists to some degree in order to keep us on the right side of the Convention by providing for some way in which a defendant who is otherwise unrepresented, can be represented.

But it does not seem to be in line with natural justice that someone who has resisted a lawyer for the whole case and continues to resist even briefing one for the cross-examination, should nevertheless be forced at that point to have a lawyer to conduct that cross-examination. On the face of it, that cross-examination is not likely to be of high quality or contribute necessarily to the interests of the accused, which the court-appointed lawyer will have a great deal of difficulty in determining if he has not been properly briefed and included in the discussions as to how the defence might best be conducted in all the circumstances.

Lord Swinfen

Perhaps I can make one small point. If a new lawyer is to be brought into the case in the middle, unless that lawyer has been sitting in court throughout the case he will not know how it has gone and the correct questions to ask. Is it proposed therefore that where an accused decides to act for himself and is likely to be instructed to have a lawyer, there should be a third or additional lawyer sitting in court purely as an observer until such time as he is appointed?

Lord Williams of Mostyn

A defendant who is banned from cross-examining a witness on the basis of this Bill becoming law, still has a right to a fair trial. Under the Criminal Justice Act 1988, as amended in 1991, the Committee is aware from our previous discussions that defendants are banned from cross-examining child witnesses in certain cases. That is the present law. There are no arrangements for those who refuse to appoint a legal representative for the purpose.

At the moment therefore a judge has a very unsatisfactory choice. He can either let the evidence against an unrepresented defendant go untested in cross-examination or he can ask the witness questions himself. I take up the point of the noble Lord, Lord Renton, about freedom of choice: the defendant has no freedom of choice if the judge in control of the case wishes to ask those questions by way of testing the evidence in cross-examination. But it is not suitable, if we can avoid it, for the judge to appear even to descend into the arena to ask the witness questions.

We consider that any defendant who is prevented from cross-examining the witness should be allowed to appoint and instruct a lawyer to conduct the cross-examination on his own behalf even if he wants to conduct the rest of his defence himself. We are infringing on his wishes to that limited extent. A lawyer appointed by the defendant can be instructed by him. He will be able to conduct cross-examination fully informed by the defendant's view of the alleged offence and the defence, if any, that he wishes to put forward.

Where a defendant refuses to instruct a representative we believe that the court should ensure that someone other than a member of the court itself should conduct the cross-examination—I take the point of the noble Lord, Lord Wigoder—it could be the magistrates through the chair or the judge. We feel it is better that there is at least some testing of the evidence in. the interest of helping the court to its conclusions. Perhaps I can give some examples; it is not too difficult to imagine them.

In response to the noble Lord, Lord Swinfen, there would be no necessity for the lawyer to be constantly in court because there would be full disclosure to him under Clause 37 (7). The lawyer who is court appointed for this restricted purpose could quite easily conduct a satisfactory examination. For instance, if an alibi notice has been served which is an obligation under the Rules of Court if one is running an alibi defence, he can familiarise himself with the alibi and cross-examine on that if he wants to. He can read through the depositions and familiarise himself with what the defendant may or may not have said in the police interview under the Police and Criminal Evidence Act. He can study the medical evidence if it is a case of rape and cross-examine on that basis. There may be pathological evidence that he can use for cross-examination. So one can in fact conduct a perfectly useful cross-examination on this limited basis.

At the moment, I stress, all that can be done is place either a blanket prohibition on the defendant cross-examining or the judge must do it himself. It is not right for the court to appear to enter the arena and it is a better safeguard for the defendant to have a court-appointed lawyer. We have a criminal justice system which, in the eyes of many—sometimes I feel justifiably—resembles a game. It is not a game for a defendant to dictate that it is his bat and he is going home.

Lord Renton

The Minister is suggesting that the person to be appointed on behalf of the accused is to be a friend of the court—in fact, an amicus curiae. But suppose the defendant strongly objects to anyone being appointed to represent him or his interests; what is the court then to do?

Lord Williams of Mostyn

He is not strictly an amicus, but even if he were, the amicus has, in many cases—the noble Lord and I know perfectly well—an important role to play. I go back to my earlier proposition which cannot be assailed. At the moment the unrepresented defendant cannot cross-examine child witnesses in a variety of cases. The evidence therefore goes untested or the judge or the magistrates carry out the cross-examination. I am saying that it is an improvement to have a lawyer who is nominated by the court to ask those questions. On the illustrations I have given, in some circumstances—I concede, not all—a perfectly useful cross-examination can be carried out. It is better than the present system.

Baroness Carnegy of Lour

Can the Minister help the Committee by telling us exactly how that will work? Will there be lawyers in the background, not listening to the case but available if required; or will they have to be sent for and come on a bicycle or whatever? Once the lawyer has arrived, will any adjournment mean a long delay? The noble Lord, Lord Thomas of Gresford, suggested that there would have to be an adjournment while the lawyer becomes apprised of the situation and what he has to do. I am wondering what the cost of that will be in court time, lawyers' fees, and so on. How will the mechanics work?

4 p.m.

Lord Williams of Mostyn

The answer to the noble Baroness's question is contained in Clause 37, which states (2) Where it appears to the court that this section applies, it must (a) invite the accused to arrange for a legal representative to act for him for the purpose of cross-examining the witness —that is one alternative— (b) require the accused to notify the court, by the end of such period as it may specify, whether a legal representative is to act for him for that purpose". The judge, in that class of case, will come to an early conclusion because he will know at the outset whether the relevant sections apply. If the case is difficult or intricate, he will obviously give the defendant a certain latitude in terms of time. If the case is perfectly simple, the defendant can reply quite quickly.

It is often possible to find an available lawyer in a court centre. One does not want to return to the days, which certainly I am ashamed to say that I remember, when we all sat in court, desperately looking the other way and hoping that we would not be the recipient of a dock brief for one or two guineas.

Subsection (3) states If by the end of the period mentioned in subsection (2)(b)— those are the two periods that I mentioned earlier in answer to the noble Baroness— (a) the accused has notified the court that no legal representative is to act for him"— or he has not made any notification, the court must consider whether it is necessary in the interests of justice for the witness to be cross-examined by a legal representative. Again, that period of time will be for the judge to determine bearing in mind a fair number of circumstances: first, the intricacy of the case; secondly, the nature of the evidence that the witness is likely to give (because there will be a witness statement to that effect); thirdly, whether any medical evidence needs to be taken on board; fourthly, whether any great reading of the depositions is needed; and fifthly, whether any alibi witness needs to be considered.

The judge will say—this is not difficult because judges come to these conclusions when deciding on adjournments at present—"One day is enough" or, "One week is sufficient, "or that 28 days may be needed. Judges and magistrates do that constantly. It seems simple for the judge, the magistrate, the court, to conclude the appropriate length of time for a proper cross-examination.

The clause also points out that the advocate is testing the evidence against the accused in order to give him a fair trial and is doing so to the best of his ability in the circumstances which then obtain. I suggest that that means looking at the alibi notice, if there is one, and all the other documentation to which I referred. It is not difficult for the judge to come to that conclusion. I repeat that he performs such an exercise when talking about giving an adjournment for half a day, a day or a week.

Lord Ackner

I suggest to the Minister that the complicated situation which we have been discussing is the product of the total embargo on the defendant in person cross-examining. The judge will know, right from the beginning of the case, that the defendant is acting in person. Therefore, he can anticipate, when the time comes, that the defendant will seek to cross-examine in person. I suggest that an experienced judge, in the light of all our discussions, would adopt a procedure something like this: at the end of the opening of the prosecution case, the judge asks the jury to retire. He then says to the defendant in person, "In due course do you want to cross-examine the complainant?". The answer is, "Yes". The judge then says, "We have certain rules with which we have to comply and I think it would be convenient if you and I discussed the position now. What is the issue to which your cross-examination will be directed?" The defendant then answers, "She consented". The judge then says, "Tell me the circumstances in which you are going to suggest that she consented". As the judge and the defendant are on perfectly good terms, the judge is told that, and he achieves all the detail he requires.

Now we come to the position when the complainant has given her evidence in chief and the defendant rises to cross-examine. Without the blanket prohibition, the judge is in a position to see whether that cross-examination will be conducted properly, without hectoring or abusing the complainant. He discovers, as is the case from time to time, that the defendant carries out a perfectly polite, respectful and sometimes very effective, cross-examination and there is no problem.

However, the judge may find on the contrary that the defendant is abusing his position. He then sends out the jury and says to the defendant, "I've already told you about the rules we have. Now, let's get this quite clear. We'll go back into open court and if you don't adhere to what I have told you, I shall stop your cross-examination and I shall put your case to the jury myself, as you've explained it to me". They go back into open court and either the defendant has learnt to behave himself, or he has not, in which case the judge carries out the cross-examination, having explained to the jury that he is adopting that course because the defendant will not comply with his instructions.

That is a very uncomplicated position in relation to a situation which is not likely to happen frequently. I suggest that that is what the Lord Chief Justice has well in mind in the case of R v. Brown; and it is what the judiciary supports throughout. The present situation (of trying to foist on to a difficult defendant legal representation which he will refuse) does not arise and the danger of an unjust conviction or an unjust acquittal, to which the Lord Chief Justice has referred more than once, again does not arise. I respectfully suggest that perhaps the Minister might reflect at greater length on what I have said between now and Report.

Lord Williams of Mostyn

I have to disagree with the noble and learned Lord, Lord Ackner. These provisions in part are intended not to deal simply with the nature of cross-examination. The noble Viscount, Lord Brentford, gave as an example someone who is terrified at the prospect of being asked questions by the alleged stalker or an elderly woman who is terrified at being asked questions by a notoriously bullying thug. It is the prospect of that experience, not the particular questions, which may bring about the vice that we are addressing. There is no need to wait until the prosecution has finished opening the case. The directions can typically be given at a plea and directions hearing, before the jury is empanelled, to ensure the efficient and effective conduct of the case.

The noble and learned Lord said that the questioning by the advocate would be "foisted" on the defendant. I respectfully repeat the present position. If, in the child witness cases, there: s a blanket refusal to allow the unrepresented defendant to cross-examine in person—and there is—the only present alternatives are: no cross-examination at all (in other words, no testing of the evidence), or the judge himself "foists"—I use the noble and learned Lo:1-d's word—his cross-examination on the defendant. The defendant has no right to step that. The judge is in charge of the court and the case.

We are offering an improvement or the present system so that if a defendant wishes he may have legal representation for the forbidden in-person cross-examination. He can do all the rest of the cross-examination and the conduct of the case himself. If he will not appoint a lawyer himself for the otherwise forbidden cross-examination, the court will appoint a lawyer. I do not see any difficulty about that. However, as always, I shall pay careful attention to everything that Members of the Committee have said and in particular to the words addressed to me most recently by the noble and learned Lord, Lord Ackner.

Lord Thomas of Gresford

We regard the adversarial system as the centre of our criminal justice system. It requires examination and cross-examination of witnesses in order to discern the truth. That cross-examination has to come from a person who is fully informed of the case that he is seeking to put. If a defendant chooses to act in person he may or may not be more skilled than a lawyer, but he is at least fully informed of the case he wishes to put.

The problem with the imposition of a lawyer on an unwilling defendant is this. It throws askew the whole adversarial system to which we have been accustomed and which has grown up over centuries. It puts into the equation a completely unknown factor. It may be that there can be some justification for that in_ very special cases such as when children are involved or where there is a complaint of rape or other sexual offences. I can live with that. But the Bill envisages that this protection is to be extended to witnesses across the system. It can apply to any case and any witness. As the noble Lord just said, it can be applied not because the defendant is misbehaving himself an any way in defending himself or that he has overstepped any particular boundary or mark; it can be imposed on him because of the particular sensitivity of a particular witness. So in every type of case and with every type of witness there can now be a new, unknown factor introduced into a system which is balanced and which we believe has arrived at the truth, by and large, in the criminal cases heard in this country.

We are stepping into completely uncharted waters. For the moment I seek leave to withdraw these amendments, but I shall return to them.

Amendment, by leave, withdrawn.

Lord Hoyle

I believe that this is a convenient time to take the Statement. Before we move to the Statement on the National Strategy for Carers, I would like to take the opportunity to remind the House that the Companion indicates that discussion of a Statement should be confined to brief comments and questions for clarification. Peers who speak at length do so at the expense of other noble Lords. I beg to move that the House do now resume.

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

House resumed.

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