§ 8.24 p.m.
§ Consideration of amendments on Report resumed on Clause 26.
§ Viscount Colville of Culross moved Amendment No. 40:
§ Page 19, line 15, at beginning insert ("Subject to section 30(5)").
§ The noble Viscount said: My Lords, at the Committee stage I asked the noble Lord, Lord Williams of Mostyn, to consider the rather difficult problem confronting courts—and it will be Crown Courts and magistrates' courts—when they decide whether to admit evidence which comes via a video recording. The noble Lord was kind enough to write to me, as he has done for so many others, and he said, first of all, that there is the test that appears in Clause 26(2) and (3). He also pointed out that, by virtue of Clause 30(5), the provisions of the Police and Criminal Evidence Act, Section 78 (which is a familiar and widespread discretion) will also apply, as indeed I think is the case now. The difficulty is, as the noble Lord, Lord Thomas of Gresford, was setting out before the adjournment, that we are now proposing to deal with a much wider range of potential witnesses who will give their evidence via video recordings. We therefore need to be clear about the type of discretion and the criteria upon which a court is to use its discretion if there is an objection to any such evidence.
§ The more I have looked at this the more difficult it has seemed to me to be. I am not sure that this is the right amendment at all. I have come to the conclusion that it is probably better if one leaves out altogether subsection (2) and subsection (3) of Clause 26. However, that is not the amendment, and I am at present probing how the Government are intending that this should be dealt with by the courts. The only existing statutory special measures that I know of are in relation to the video recording of children's evidence. They were put into the Criminal Justice Act 1988 by some new sections in the Criminal Justice Act 1991. These are all being repealed and replaced by the provisions of this Bill. I am sure that the noble Lord, Lord Williams, is familiar with the case of G v. DPP, where Lord Justice Phillips, as he then was, now the noble and learned Lord, Lord Phillips, gave a lapidary judgment in the Divisional Court in a difficult case arising out of the evidence of two small children.1634
§ There are a number of aspects of this case which are illustrative of the problems that are likely to arise. The first point that emerges is that when Lord Justice Phillips looked at the existing special provisions for deciding on the admissibility of children's evidence, which is the same to all intents and purposes as what is now in Clause 26(2) and (3), he said that there was no material difference between them and Section 78 of the Police and Criminal Evidence Act. If that is right, my original proposition that we do not need subsections (2) and (3) is probably the correct response to all of this, because of course Section 78, as I said, is saved by Clause 30(5).
§ However, the case goes on to illustrate graphically the problems that will arise. As I said, they will arise in the magistrates' court as well as in the Crown Court. I suggest to the House that we ought to be abundantly clear about how they are to deal with these matters. The case of G turned on the proposition that a highly skilled psychologist should be called to give evidence—his report ran to 115 pages—about the reliability of the evidence of the two children concerned. They were perfectly normal children and there was nothing to suggest they were particularly unreliable. However, he was asked by the defence to produce this report and for the magistrates' court to rely upon it, and then the Crown Court on appeal. After a great deal of argument the magistrate decided—it was a stipendiary—that he would not and the Crown Court said that it would not rely on it either. The Divisional Court, under Lord Justice Phillips, said that it was quite right not to do so because in the case of normal children there was no need to have a psychologist's report to decide whether their evidence was admissible or reliable.
§ However, the point that emerges from this is whether the evidence can be considered to be reliable. That may be comparatively simple when one is dealing with ordinary, straightforward children. It may be a little difficult if they are young, but, on the other hand, there is by now a substantial body of experience—the noble Lord, Lord Williams, mentioned this before dinner—in the hands of the police and social workers on preparing witness statements by children. There is the memorandum of good practice which was prepared after the Cleveland case which is widely used.
§ This Bill, however, embraces a far wider scope of people who potentially may give evidence by video link. We were talking about them before dinner. I refer to Clauses 16 and 17. As to some of them, I suggest to your Lordships that the reliability of their evidence may be a live issue indeed. There may well be the necessity to call expert evidence on the whole of that subject. There will, of course, be borderline cases where it is not immediately clear to anyone whether there should be expert evidence.
§ I believe that the further one delves into this, the more sensible it is to rely upon the now widely used powers to admit or to reject evidence under Section 78 of the Police and Criminal Evidence Act. We do not need a new, separate and probably unnecessary—if Lord Justice Phillips is right—test to be written into the Bill. But at least if the Government will not give way on this matter—I do not ask the noble Lord, Lord Williams, to 1635 give a definitive answer tonight because I only put some of this in the letter I wrote to him—they at least ought to give a signpost to the courts when they come to consider some of these difficult issues.
§ I did not see Clause 30(5)—or, if I did, I did not comprehend that it took in Section 78 of the Police and Criminal Evidence Act and applied it to the whole of this chapter of Part II. I do not believe that all practitioners, all courts and all magistrates will necessarily see that either. Therefore at the very least I put down this amendment in order to provide them with a little signpost. They would at least have their attention drawn to this and perhaps they would have their attention drawn to the fact that it has now been said by Lord Justice Phillips that there is no great difference between their familiar test and that which is in the legislation.
§ The whole of this is experimental. The noble Lord, Lord Williams, said that this provision seeks to improve the quality of evidence. I am sure it is right to try to do this, but I think that we ought to make it workable, otherwise the whole exercise will end up in a prodigious flow of appeals and all kinds of problems in the course of getting these cases right. I am concerned about this because I know the way in which it would have to be done. I know that it is not necessarily easy to find any guidance when one is sitting in a remote court away from London and having to do one's best in unfamiliar territory. I hope that the noble Lord, Lord Williams, will not think that I am trying to impose upon him anything which is in the least sinister. I just want some clarity about this. I do at least suggest that we ought to have the guideline which I put forward in this amendment. I beg to move.
§ Lord Williams of Mostyn
My Lords, I am grateful to the noble Viscount for raising this matter and also for his courtesy in correspondence with me. I believe that there is a strong case which he has outlined for providing clear published guidance on these measures when they have received Royal Assent. However, I shall deal with his point now.
In Committee we had a discussion about what self-direction a court should give itself when considering the admissibility of video recorded evidence-in-chief. Subsections (2) and (3) of Clause 26 effectively reproduce the current test for the admission of such evidence in Section 32(a) of the Criminal Justice Act 1988. Subsection (2) of course provides that recordings of this kind may be introduced only if that would be in the interests of justice. Subsection (3) empowers the court to edit recordings to excise any part of them which the court considers to be so prejudicial to the accused that the prejudice which would result outweighs the desirability of using the whole recording; in other words, the well-known balancing exercise.
If further guidance is needed, the noble Viscount is quite right in that a judge may look to Sections 78, 82 and 83 of the Police and Criminal Evidence Act on the admissibility of prosecution evidence and of course to the quite substantial case law which has been built up around those provisions. Clause 30(5) makes it quite plain that the powers in Clause 26, and indeed in the 1636 rest of the provisions in Chapter I of Part II of the Bill, do not affect the operation of any rule of law relating to evidence in criminal proceedings. If further help is needed, one can look to Clause 58(2) of the Bill which provides that nothing in Part II of the Bill affects any power of a court to exclude evidence at its discretion, whether by preventing questions being put or otherwise.
I well appreciate the noble Viscount's intentions. I hope that I have been able to give the clarity that he looked for. I have already indicated that we shall seek to provide clear guidance on these points for judges and other courts to follow. I do not think therefore that the proposed amendment, if it were included in the Bill, would be of assistance. However, I recognise the great service the noble Viscount has done in giving me the opportunity to, I hope, clarify matters.
§ Lord Cope of Berkeley
My Lords, before the Minister sits down, will he address the point made by the noble Viscount that a signpost in the terms of the amendment might be helpful in this respect? The Minister reproduced almost exactly the letter he wrote to the noble Viscount, for which we are all grateful, but that did not address the idea that a signpost within these terms would be helpful. Without altering the substance of the law, it would nevertheless make it easier for people to refer to it and to manage it.
§ Lord Williams of Mostyn
My Lords, I did respond to that point because I said twice that it was our intention to provide clear published guidance when we have Royal Assent. It seems to me that that clear guidance would be of assistance in the circumstances that the noble Viscount described.
Viscount Colville of Culross
My Lords, I am very unhappy about this. The Minister may well wish to issue guidance, but guidance does not have the force of statute. A court looking at this now very wide-ranging proposition that there should be video evidence in all kinds of wholly deserving circumstances will find that it is confronted by two tests. There is the test in Clause 26(2) and (3) and there is the one in the Police and Criminal Evidence Act. The noble Lord is quite right. There are two in that Act. They are in Sections 78 and 82(3). Unless we say on the face of the statute that these are either the same or are different—and if so, in what way they are different—the courts are bound to try to find a difference between them. They will say that if Parliament says that there are two separate exercises of discretion, Parliament must have intended that there should be two separate exercises and not the same one. If Lord Justice Phillips is right and there is no material difference between the two, what has happened is this: when the whole exercise of introducing children's evidence on video was put into the law in 1991 it was thought wise by the draftsman at the time to make special provisions, which are now repeated in the Bill. That was because it was new and no one was quite sure how it would work. No doubt that was a wise thing to do. It has now been working for some years.
We now have what I should have thought is a fairly firm decision by the Divisional Court that really there is no difference. I wonder why the Government now wish 1637 to perpetuate the distinction that appeared in 1991 when it probably is not necessary. All it will do is to confuse. However much guidance may be given, the only guidance that will be of any use is that there is no difference between the two tests. If that is the guidance that will be given, I cannot see why we have to have two tests in the first place.
I shall not press the matter today. I want to ask the noble Lord, Lord Williams, to look carefully at this case. I am sure he will do so because he always follows up these matters with the greatest care and courtesy. However, I think we have reached the stage where what used to be Section 32A(2) and (3) of the 1988 Act as inserted in 1991 has had its day and that we should now simplify matters and get rid of it. We will then go back to the simple test with which everyone is familiar and on which, as he said, there is a great deal of accumulated case law. I hope that the noble Lord will look at this carefully again. He nods his head. I am sure that is a genuine promise. I believe that we are liable to get into a great deal of litigation and trouble unless this is sorted out. Frankly, guidance will not do. For the moment, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 27 [Video recorded cross-examination or re-examination]:
§ Viscount Colville of Culross moved Amendment No. 41:
§ Page 20, line 31, leave out ("the") and insert ("such a").
§ The noble Viscount said: My Lords, this amendment is directed to a different point. In a moment I shall listen carefully to what the noble Lord, Lord Thomas, has to say when he moves to leave out the whole clause. However, assuming that the clause stays in, I shall put a proposition to the noble Lord, Lord Williams, in relation to the place that I have marked down by this amendment.
§ I envisage that the original material for video-recorded evidence will be taken at an interview, probably with the police and perhaps other appropriate persons present. It will then be available to be looked at by the parties, and in due course by the court. There will be a stage at which a decision has to be taken, probably by the prosecution, that this material is to be used in court, if leave is given, as the evidence-in-chief of that witness. There is likely to be a long period of time before a decision can be taken as to whether the cross-examination and re-examination also shall be by way of video recording because of the problem that was discussed previously in this connection that one has to go through the whole of the process in the Criminal Procedure and Investigations Act before full disclosure takes place and the defence is in a position to cross-examine.
§ In this amendment I am suggesting that instead of the special measures direction dealing at the same time with the admission of the evidence-in-chief and also the cross-examination, it would be more sensible to provide that those should be dealt with separately and one after the other, as the second one arises, if it does. The Bill as drafted indicates that one would have to take the 1638 decision about cross-examination at the time when the initial decision about accepting the evidence-in-chief by way of video recording is taken. I cannot believe that that is sufficiently flexible. I am not entirely certain that that is what the Government intend. But if they do, I think it is impracticable. I beg to move.
§ 8.45 p.m.
§ Lord Williams of Mostyn
My Lords, I understand the purpose of the noble Viscount's amendment to allow courts to direct that there should be a video recorded cross-examination after they have directed that video recorded evidence-in-chief should be admitted. That is already possible under Clause 27 as currently drafted.
Clause 27 requires a provision for cross-examination to be recorded on video to be included in the same direction as the direction that admits video-recorded evidence-in-chief. This could be when the direction to admit video-recorded evidence-in-chief is first made or by way of an amendment to the first direction at a later stage. The intention behind this is to ensure that a video recording of the witness being cross-examined will be shown at trial only if the court has admitted a video recording of the evidence-in-chief.
Unless the video evidence-in-chief has been admitted, a direction for video recorded cross-examination could be pointless. The court might decide not to admit a video recording at all and direct that the witness should give evidence-in-chief live at trial, or it might decide to edit some of the questions and answers in evidence-in-chief.
It could be impractical for a party to cross-examine without knowing what would be in the final tape of the evidence-in-chief. The clause does not exclude the possibility that the court could indicate to either of the parties making an application that, on the assumption that a video recording of the evidence-in-chief will be admissible, the parties can plan for video-recorded evidence-in-chief and for video recorded cross-examination as well.
By making the direction for the cross-examination contingent on the admission of the recording of the evidence-in-chief, the court reserves the right to wait until it has approved the video recording of the evidence-in-chief before confirming the direction for video-recorded cross-examination.
There may be some cases where a party wishes to apply, first, for video-recorded evidence-in-chief to be admitted, and later to come back to the court and apply for a video-recorded cross-examination—perhaps after discussion with the other party or if a witness's circumstances change. In those cases, if the court wished to direct that video-recorded cross-examination should take place, it would simply amend the original direction. That would be the situation both under the clause as it currently stands and, I suggest, if it were amended as indicated in the amendment. I do not think that the amendment would improve matters. I hope my explanation may help.
Viscount Colville of Culross
My Lords, it may not improve matters, but it clarifies them. It does not seem 1639 to me that what the noble Lord, Lord Williams, has said is immediately apparent in the text of the Bill as it stands. It appears that the decision on both matters has to be taken at the same time. I am sure that that is impracticable, as I have said. However, if the noble Lord says that the Bill is to be interpreted on the basis that there can be a new application after it has been determined that the case is ready and that the defence wishes to carry out cross-examination on the video link and that the original special measures direction can be amended accordingly, then I would be content. That is a matter that could properly go in the guidance. However, I am a little disappointed that such a modest amendment which has, as the noble Lord said, precisely the effect that I hoped it would have is still not acceptable to the Government. I cannot see why. I shall not pursue the matter and I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Viscount Colville of Culross moved Amendment No. 42.
§ Page 21, line 22, after ("diligence") insert ("or after due disclosure").
§ The noble Viscount said: My Lords, I wish to discuss the point of this amendment to make sure that the defence is not put at a disadvantage. I am sorry to tell your Lordships that the preparation of cases in the criminal courts does not always proceed as smoothly as it should. Cases come for trial, or very nearly reach it, without all the necessary preparations having been made. I do not wish to apportion blame; it is simply a fact. What concerns me as regards Clause 27(6) is the test of what a party could not have discovered with reasonable diligence.
§ Some of the circumstances which might lead to the re-opening of cross-examination already carried out on video could arise at a very late stage. There could be the disclosure of something, perhaps under public interest immunity, which had not previously been thought suitable for disclosure to the defence. There is a continuing duty on the prosecution not only up to, but also during the trial—and on the judge as well—to consider anything which is claimed to be protected by public interest immunity. If there is a change in the situation before the trial, but after the video cross-examination has taken place, then the existence of the material in question cannot possibly be known to the defence and not even reasonable diligence can allow the defence to discover that it existed. However, it would then be in the domain of the court. The defence will know about it, and it will have to persuade the judge that it can recall the witness for further cross-examination. I hope that this will be an extremely rare occurrence. It would be monstrously unfair in such circumstances if anything in the Bill were to prevent the court allowing the defence in a proper case to re-open the matter.
§ I move the amendment in order to explore the proposition with the noble Lord, Lord Williams. I am sure it is not intended to cut out an application from the defence, even at a late stage, if something which it had not expected arises and affects the way in which the 1640 cross-examination would have been carried out, had it been known on the video recording. I look forward to the noble Lord's explanation to make sure that there is no injustice built into the subsection as it now stands. I beg to move.
§ Lord Cope of Berkeley
My Lords, I have some sympathy for the amendment. The Law Society has recently been in touch with me. I have therefore tabled an amendment to a later clause which is intended to improve the disclosure for the defence in various ways. I shall come to it at a later stage, presumably on another day. I have sympathy with what the noble Viscount says about the difficulties of disclosure in some cases and his reason for moving the amendment.
§ Lord Williams of Mostyn
My Lords, it is always helpful to hear the views of those with practical experience, as the noble Viscount has, of regularly sitting and considering matters where these problems may arise. What he says is worth careful consideration. I cannot accept his example of late disclosure of material that had formerly been the subject of public interest immunity non-disclosure. It seems to me, as a first response, that if there were non-disclosure in such circumstances, then no reasonable diligence would have been able to discover that material. I do not believe that that will bite.
If it is agreeable both to the noble Viscount and your Lordships, I would like to think about this matter with some care to see if the phrasing is absolutely perfect. I put it very much in a neutral way. It may be that one ought to have an "interests of justice" test here so that one would not necessarily attach to the defendant the incompetence of his advisers. I take the noble Viscount's point. I shall think with some care about the general theme he has introduced. As I said, my immediate response is that his illustration in terms of non-disclosure in the public immunity context is not a danger. But there may be other dangers that I would like to think about and discuss with officials. I shall certainly ponder the matter with some care.
Viscount Colville of Culross
My Lords, I shall be very happy with an "interests of justice" test here. At the moment there is a burden on the defence which it may not be fair for it to discharge. If the noble Lord will be kind enough to do what he has promised and look at the matter again, with the possibility that we shall amend the clause, I believe that we will ensure that there is no injustice in a case of this kind. In response to that promise I beg leave to with the amendment.
§ Amendment, by leave, withdrawn.
§ Lord Thomas of Gresford moved Amendment No. 43.
§ Leave out Clause 27.
§ The noble Lord said: My Lords, I seek to leave out Clause 43 entirely. I take some encouragement from what the noble Lord, Lord Williams of Mostyn, said a moment ago in recognising that there are certain dangers in the clause which he wishes to consider. The clause is completely unsatisfactory as it stands. I hope that the 1641 noble Lord's response to my amendment is not to believe that I am attempting to obstruct cross-examination and re-examination. I am addressing the practical difficulties which arise out of such a system.
§ The raison d'être of the special measures is that the quality of evidence given by a witness is likely to be diminished by fear, distress or, under Clause 16(1), because of youth or mental incapacity. It has to be recognised that videoed evidence-in-chief and cross-examination on video is unsatisfactory as a way of proceeding and that the most satisfactory kind of evidence before a court, whether before magistrates or a jury, is that of a live witness whose body language, answers and responses can be judged by the tribunal in the appropriate setting. So one begins with a presumption that oral evidence given live is better in the generality of cases than video links of this kind.
§ The practical difficulties that arose when we discussed this clause on a previous occasion were acknowledged by the noble Lord, Lord Williams of Mostyn. The noble Lord said that in effect we had to make a start somewhere and that we should get matters under way and see how they work out.
§ Some of those difficulties remain. For example, in discussions on the two previous amendments there seemed to be an assumption that the defence would be applying for the cross-examination of a witness by way of video link. I should have thought that to be a very unlikely occurrence, and that those defending would wish to cross-examine, possibly through a video link, but not by means of a video-recording, and it would be the prosecution who would advance to the court a request for a direction that the cross-examination and re-examination should be recorded. So the approach would come first from the prosecution, not from the defence.
§ The question then arises: when would that application be made? Would it be made immediately the matter was committed for trial, or, under the new procedure, when it appeared in the Crown Court? Would an interview taken at the time of the original complaint then be produced and the prosecution advance to the judge: "This is our evidence-in-chief. Now we say that through fear and distress this should be the evidence before the jury and cross-examination should be by way of video"?
§ If it is at that early stage in the proceedings, what impact would it have on the defendant? The question arises: has he appointed counsel? As we know, counsel in a trial, or a solicitor in a magistrates' court, can be appointed at a late stage. Are the defendant's instructions final? Anyone with experience as an advocate in the criminal courts knows that a defendant often advances a completely untrue and futile story which his own advocate will quickly show to be unreliable and untruthful; and from his own advocate's discussion with him in conference it can sometimes be established that he actually has a better defence if he tells what he says is the real truth about what happened. Not long ago I had the experience of losing an appeal in the Court of Appeal and of my client then saying to me, "Now I want to tell you what actually happened". 1642 What he then told me at that time was a full defence to the original matter and was a much better foundation. So it is simply assumed that when a client is originally seen by his lawyer, solicitor or barrister, what he tells his lawyer will be the defence that ultimately emerges from that discussion at the trial itself.
§ Under subsection (6) of Clause 27, if a defendant were under pressure from his own side to say, "I understand now that what I said before is untrue and this is the truth", he would not be in a position to apply for cross-examination of a vulnerable witness and would be at a considerable disadvantage as a result. The insertion at some point in the clause of "in the interests of justice" or some other provision, as the noble Lord, Lord Williams of Mostyn, referred to a moment ago, may improve the protection that a defendant should have in all criminal proceedings.
§ I move this amendment simply on the basis that there may be circumstances where cross-examination and re-examination by way of video-recording is appropriate. However, I do not believe that sufficient thought has been given to what those circumstances are. I look forward to the re-think that the noble Lord has promised, and I hope will promise me when he responds to the amendment. I beg to move.
§ 9 p.m.
§ Lord Ackner
My Lords, I entirely agree with the noble Lord that direct evidence would be much better than the use of video. However, as I understand it from discussions on previous legislation, the virtue of the video is to have the evidence when it is fresh instead of waiting until the court has convened and then taking the evidence direct. The virtue of the video, both in-chief and, to a lesser state, in cross-examination, is to have the material when it is fresh and therefore more likely to be reliable.
Viscount Colville of Culross
My Lords, this matter has been discussed before. I have great sympathy with the noble Lord, Lord Thomas, in doubting the expediency of including this clause in the Bill.
The noble and learned Lord, Lord Ackner, is right. Ideally, the object of the exercise would be to have the cross-examination when the whole matter is fresh in the witness's mind. The more of a disability the witness is under, the more important that is. It is important for children, whose memory span can be very short. I am sure it is equally important in relation to people with other kinds of disability.
The one point that is absolutely plain from the previous discussions is that nothing of the kind is going to happen under Clause 27. The whole of the procedure under the Criminal Procedure and Investigations Act 1996 would have to have been fulfilled before anything could be done by way of applying for cross-examination on video. I cannot see that that is going to happen at a time when the evidence is fresh in the mind of the witness.
The difference between having a cross-examination on video and having it through a video link at the trial itself is probably no more than a matter of a few weeks. 1643 If that is all that we shall achieve by Clause 27, I fear it is very little. I am consequently ambivalent about this matter, although I should not wish to oppose it. If the noble Lord and his advisers believe that there is even a small advantage to be gained in terms of obtaining reliable evidence from vulnerable witnesses, I do not wish to stand in their way. However, I believe that we shall find that the use of the provision will be minimalised by the practicalities in the criminal court.
§ Lord Warner
My Lords, I rise to remind noble Lords that the arguments in relation to video evidence of evidence-in-chief are different from the arguments with regard to video evidence of cross-examination and re-examination. The arguments about taking evidence from vulnerable witnesses close to the event are the arguments for video evidence of evidence-in-chief. The arguments in support of Clause 27 relate to the intimidatory effect on some witnesses of being cross-examined in court and the difficulty in some cases of bringing forward and sustaining a prosecution if the witness is to be cross-examined in a court setting.
The point of Clause 27 is to ensure that some of the low levels of prosecution in cases of sexual offences where vulnerable witnesses are concerned would be mitigated by the provisions of the clause, which would enable a greater degree of security to be given to those witnesses, who would not have the fear of being cross-examined and re-examined in a court setting as distinct from on video. Those seem to me to be arguments for retaining Clause 27 as it stands.
§ Lord Thomas of Gresford
My Lords, before the noble Lord sits down, perhaps I may ask him what distinction he draws between cross-examination which is recorded through, presumably, a video link and cross-examination where the jury or magistrates are in one room and in an adjoining room, subject to the usual safeguards, there is the witness. Why is there more stress on the witness when the trial is actually taking place than when the evidence is recorded when he or she is being cross-examined?
§ Lord Warner
My Lords, the danger in this debate is that we are looking at these issues through the eyes of self-confident people who are able to cope with an argument and cross-examination. Many of the people we are talking about are terrified of the thought of going into a court and reliving their experience through cross-examination and re-examination about it. From my own experience in the past of dealing with both children and people with learning disabilities in these circumstances, I believe that the prospect of being in court and being cross-examined directly on an episode which was extremely scarring to them makes them reluctant to come forward and be a prosecution witness.
§ Lord Cope of Berkeley
My Lords, I agree with the noble Lord, Lord Thomas of Gresford, that live evidence, both evidence-in-chief and cross-examination, is to be preferred over video evidence, whether it is live link or recorded. I believe that I get a better and more complete picture of the story a person is telling if I am 1644 in the room with them than if I see them on television. Ordinary television is a highly professional production, with proper lighting and so on, which can distort the message, as can an amateur video. Presumably a court video is somewhere between the highly professional production of the BBC and the amateur video with no professionalism about it. I therefore believe that live evidence is to be preferred by the court.
However, like the noble Lord, Lord Warner, I do not think that that is what we are talking about here. We are concerned with the protection of vulnerable witnesses, not only in cases of sexual offences but in any case. The question is whether video evidence is merely an electronic means of having screens—which it seems to me it may be in some respects. But we are still left with the distinction which the noble Lord, Lord Thomas, drew between the Clause 23 provisions for evidence by live link and the Clause 27 provisions for video recording of evidence in advance. I believe the difference is that with live link the timing is entirely in the hands of the court in the way it is progressing with consideration of the matter before it and that therefore tension can build up on the child or vulnerable witness who is prepared and waiting to give his or her evidence by live video link, whereas where the recording is done in a prepared way that element of tension is at least minimised.
I therefore believe that there is a case to be made with regard to cross-examination of some vulnerable witnesses, apart from the case for freshness, to which the noble and learned Lord, Lord Ackner, referred. I accept that that applies to evidence-in-chief, but it is extremely difficult to deliver and may adversely affect the quality of the evidence on cross-examination or re-examination if all the other procedures which are necessary, such as disclosure, and so on, before there can be effective cross-examination are to take place. I believe that cross-examination, even by video, needs to be as near to the court proceedings as possible. That does not necessarily rule out for ever the idea of recording it on video as opposed to it being done by way of a live link.
§ Lord Williams of Mostyn
My Lords, many of the topics that derive from consideration of Clause 27 have been discussed earlier in the context of particular amendments. I shall try, therefore, not to trample over ground that we have already traversed. Clause 27(1)(a) concerns the cross-examination of the witness and any re-examination to be recorded by means of a video recording; in other words, it is not a video cross-examination but a cross-examination that is recorded on video. The two are quite different.
There is much in what all noble Lords have said with which I agree. Essentially, these measures arose from recommendations of the late Judge Pigot in his report of the Advisory Group on Video Evidence published 10 years ago. He suggested that in the case of children and certain other vulnerable adult witnesses a video-recorded preliminary hearing should be held in informal surroundings away from the atmosphere of the court. I entirely agree with the comment of my noble friend Lord Warner. For someone who is accustomed to 1645 court—I believe virtually all speakers are—it is difficult to realise the terror that it holds for people without that past experience. It was the intention of the Pigot recommendations that the hearing would be held as soon as practicable after the video of the witness's evidence in chief had been admitted as evidence.
The Pigot approach points to two advantages. The first, to which the noble and learned Lord, Lord Ackner, pointed, is that the questioning of the witness can take place at an early stage. Secondly, it is important to echo the observation of my noble friend Lord Warner that witnesses can be questioned in a relaxed setting away from the more charged atmosphere of a court, which for many people is frightening and may involve adjournments, unfamiliarity and contact with strangers. Many of those factors are deeply distressing to some potential witnesses whose evidence at the moment simply goes unheard.
I take the point made certainly in Committee by the noble Viscount, Lord Colville, that the new disclosure provisions, particularly primary and secondary, mean that in many cases the defence is unlikely to be ready or willing to cross-examine until shortly before the trial begins. Obviously, that waters down the first advantage alluded to by the noble and learned Lord, Lord Ackner. The second advantage remains. For some vulnerable witnesses, whether because of age, incapacity, fear or distress, there is benefit in having the cross-examination closer to the event. Although it is not perfect, bearing in mind the problems of primary and secondary disclosure, it is nevertheless better for many than waiting for the trial.
I believe it is unlikely that most witnesses eligible for special measures will need such a provision. I agree with the noble Lord, Lord Thomas, that very often evidence via a live link will help people who need this assistance to give best evidence. There will be a small number of cases, particularly those involving vulnerable witnesses, in which a live link or video-recorded evidence-in-chief with a live link is not enough for them to give their best evidence. Therefore, in a relatively small number of cases that opportunity should be available. That is the reasoning behind Clause 27. There is the protection that the accused will not be present, although he must be able to see and hear what is being said and communicate with his counsel. The technology is perfectly well able to deal with this. The conduct of the cross-examination will always be under the control of the judge or magistrate. There is no need to edit a tape because the conduct of the cross-examination will be under the control of the court. Clause 27 contains the safeguard of the exclusion of video-recorded cross-examination if it is made other than in conformity with rules of court.
We hope that the judges or magistrates who control video-recorded cross-examinations are the same as those who preside at the trial. I appreciate that that cannot be guaranteed, but I expect the Court Service, judiciary and magistracy to make every effort to ensure that that is so. We believe that there are proper safeguards in terms of legal representation and that subsections (5) and (6) are reasonable. I reiterate my promise to consider again whether or not there is a need for an overarch of the 1646 interests of justice. I do not think that the fears expressed will be justified in practice. I believe that there are safeguards. I shall consider with some care what has been said. I believe it to be undoubted that we need Clause 27 for a limited number of witnesses.
§ 9.15 p.m.
§ Lord Thomas of Gresford
My Lords, perhaps I may pick up the phrase "a limited number of witnesses". I understand the argument that where freshness of evidence is required, where it is a matter of memory, in respect of those referred to in Clause 16(1)—namely, children under the age of 17 and those suffering from an incapacity—some cross-examination that is recorded has merit. But for those who seek the protection of special measures under Clause 17(1) in order that the quality of their evidence is not diminished other considerations apply. It is not a question of memory but of fear or distress. Therefore their recollection is likely to be as good at the time of trial as any other witness called to give evidence in person.
I asked the noble Lord, Lord Warner, about the distinction between a recorded and a live link cross-examination in so far as it impinges upon the fear and distress of the witness. His answer was that the court would sit on a certain day; the witness would become apprehensive as that day approached, would suffer nerves, and so on. However, if the evidence were to be recorded, there would be an appointment; the day would approach; the witness would know that at the other end of the link where the recording was taking place there was not simply the counsel or solicitor for the defendant but the defendant who has to be there to give instructions. So what difference is there as regards the fear and distress that the witness will suffer whether the evidence is recorded or live?
The court suite consists of a room in relaxed colours. It is fitted out in order to relax a witness when he gives evidence over a live link. I do not see that the situation involves anything more frightening than might occur at some police station, or wherever it is proposed that the video recording takes place. I do not see the distinction.
A point referred to in Committee, and to which I refer again, is that if a recording is made too far in advance of the trial and there is a change of instructions, disclosure or anything else, the interests of justice will demand that the witness comes to the court at trial time and is cross-examined further over a live link on the matters which have emerged. Therefore in a substantial number of cases the prospects are that the witness will be cross-examined on two separate occasions. Those who seek special measures under Clause 17(1) are likely to be in equal fear or distress whether the evidence is recorded or is on a live link. It seems sensible to me to ensure that they are available at the time of trial when all the preparations are complete, all disclosure has taken place and there is no prospect of a second cross-examination arising.
I await the proposals of the Minister at Third Reading. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.1647
§ [Amendment No. 44 not moved.]
§ Clause 28 [Examination of witness through intermediary]:
§ Lord Swinfen moved Amendment No. 45:
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: My Lords, this amendment to Clause 28 requests the introduction of a statutory requirement for the rules of court to make provision for the appointment and appropriate training of intermediaries. The comments made on this point in Committee still hold.
§ It is vital that standardised guidance should be available to accompany the introduction of this innovative measure. Witnesses with learning difficulties could benefit enormously from the support of intermediaries and it is a measure which I wholeheartedly support. Nevertheless, I believe that this is also one of the most controversial measures in the Bill which will need to be effective from the outset. If intermediary schemes are not properly and systematically implemented, we run the risk of them being jettisoned on the grounds that they are likely to inhibit the production of quality evidence, a result which would prove to be extremely detrimental to some vulnerable witnesses with learning disabilities. I beg to move.
§ Lord Williams of Mostyn
My Lords, I agree that an intermediary must be fit for the purpose before he is trusted by the court. Clause 28 already provides that anyone appointed to undertake the task must be approved by the court. I can tell your Lordships—and I hope it is of assistance to the noble Lord who moved the amendment—that before Clause 28 can be implemented, we shall need to have proper guidelines setting out the role of intermediaries and what qualifications and training would be appropriate.
The steering group to which I referred earlier, implementing the Speaking Up for Justice recommendations, is looking at what that guidance should be both for potential intermediaries and those who may be involved in questioning a witness with an intermediary's assistance. That latter point should not be overlooked in terms of professional training and competence.
There are similar schemes in jurisdictions as diverse as South Africa, the United States, Western Australia, New Zealand and the Irish Republic. We are looking at the lessons which we can learn from them.
It has taken years to develop an accreditation scheme and training for language interpreters. An agreement has now been introduced with the aim of standardising arrangements for sign language interpreters, which has been adopted by all the main agencies. We hope to ensure that, by the end of 2001, every sign language interpreter working in courts and police stations will be selected from the Council for the Advancement of Communication with Deaf People directory. In the interim, agencies are encouraged to use accredited interpreters wherever possible.
1648 Certainly, I need to remind myself that the communication needs of witnesses with whom intermediaries work vary enormously. Some of those witnesses may be children and some may be disabled. For a variety of reasons, it is wrong just to use the tag "disabled" without remembering the different natures, causes and consequences of disabilities. There are a variety of effects. Some people may be disordered although capable of giving evidence, which, in some circumstances, is capable of being safely relied upon.
We believe that the standards and safeguards need to be flexible. We do not want rigidity in the form of a statutory regime. We believe that decent working guidelines are likely to be better. We do not wish to deny access to justice for those witnesses who have difficulties. Therefore, I hope that I have met the spirit of what the noble Lord is seeking. I hope that I have assured him that we are working towards a common purpose. I believe that our way is likely to achieve a better result.
§ Lord Swinfen
My Lords, that is a most encouraging response for which I thank the Minister. I am sure that when the noble Lord, Lord Rix, reads it, he will be as encouraged as I am. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 31 [Warning to jury]:
§ Lord Swinfen moved Amendment No. 46:
Page 23, line 20, at end insert (", or
(b) a statement made under section 30(1).").
§ The noble Lord said: My Lords, this amendment extends the existing warning to the jury against pre-judging the defendant in cases where special measures are employed to include a warning against pre-judging the witness. This is vital to avoid both unwitting and deliberate prejudice on the part of the jury who may not be aware of why the special measures are being employed, and the role those special measures have in improving the quality of the witness's evidence.
§ The noble Lord, Lord Rix, has corresponded at length with the Minister in order to impress upon him the importance of the amendment. He has asked me to pass on his thanks to the Minister. Perhaps I may also thank him for copying all correspondence on the Bill to me. That has been most useful.
§ The Minister advised the noble Lord, Lord Rix, that training of the judiciary is the crux of the matter. The Minister has indicated on earlier occasions that he expects judges to refer to the use of special measures as part of their summing up and their outline of proper inferences in each case. I invite him today to advise the House of his department's plans to ensure that judges are well trained in the proper use of special measures and that, in turn, they also educate the jury in cases where special measures are employed.
§ My final point is that I fully accept the need for a warning to protect the civil liberties of the defendant. In no way do I wish to detract from that. However, it seems to me that as a number of these special measures have never been used before, one would wish to guard against 1649 prejudice in the direction of either party. It needs to be understood that special measures are being employed to enhance the quality of evidence produced and that their use has no bearing on the culpability of either party. I beg to move.
§ Lord Williams of Mostyn
My Lords, Clause 30(2) provides that evidence given in the context that we are discussing has the same status as if it has been given in direct oral evidence in court. Subsection (4) provides that in estimating the weight to be attached to the statement, the court must have regard to all the circumstances from which an inference can reasonably be drawn.
I am, indeed, grateful for the correspondence and the conversations I have had with the noble Lord, Lord Rix. I am able to tell the House what I told him; that is, in those circumstances I do not believe that a judge would fail to give the jury instruction on the status of the evidence, the new law on competency and the significance, if any, of special measures used in the trial. I do not believe that judges would fail to include mention of the provision in Clause 30(2) to the effect which I indicated a moment ago, that they are to be treated as if made in direct oral testimony.
As the noble Lord stated, the key to this is training—I repeat, not just for judges and magistrates, but for practitioners as well. We are developing a training strategy which is being taken forward by the inter-departmental steering group, which I mentioned earlier. I am happy to tell your Lordships that that group is working in close consultation with the Judicial Studies Board, which does remarkable work in the training of the judiciary. It is, of course, a judge-led body responsible for judicial training, not only of judges but the magistracy as well.
I know that the Judicial Studies Board, and in particular its Equal Treatment Advisory Committee, is happy to consider any suggestions for improving the training of judges, including magistrates, in relation to these issues.
I think that that should be a reasonable comfort. It is the undertaking that I have given to the noble Lord, Lord Rix, in our correspondence and conversations.
§ Lord Swinfen
My Lords, I thank the Minister for his response which is, I believe, a comfort. It is good to have it on the official record. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Lord Swinfen moved Amendment No. 47:
Page 23, line 20, at end insert—
("( ) For the avoidance of doubt, the judge must not warn the jury that it is unsafe to rely on the evidence of a witness on the ground only that the witness is a patient in a special hospital detained under Part III of the Mental Health Act 1983.").
§ The noble Lord said: My Lords, this is an amendment that I was asked to table by the Law Society. I understand that in the early 1980s a number of nurses at Rampton Special Hospital were 1650 prosecuted for the ill-treatment of several patients. This was under the provisions of Section 126 of the Mental Health Act 1959 which was subsequently replaced by a similar provision in Section 127 of the Mental Health Act 1983. The nurses' appeal against their conviction was upheld in the Judicial Committee of your Lordships' House in R v. Spencer in 1987.
§ I am told that the prosecution case depended wholly on the evidence of patients who were detained at Rampton as a result of earlier criminal proceedings against them. In considering the appeal, the committee ruled that while the full corroboration warning given in cases of sexual offences was not required in a case under the provisions of the Mental Health Act, juries nevertheless had to be warned in clear terms of the dangers of convicting on the unsupported evidence of a single patient and that one patient could not be treated as supporting the evidence of another patient.
§ In the Judicial Committee the noble and learned Lord, Lord Ackner, to whom I have shown my notes and who is therefore aware of what I will be saying, stated that three dangers in this case justified the jury being told to act with great caution: first, that the patients were all persons of bad character; secondly, that they were all suffering from some form of mental disorder; and, thirdly, that they might all have conspired together to make false allegations.
The noble and learned Lord prefaced those three criteria for warning the jury to treat the patients' evidence with caution by saying:
The complainants were men of bad character. They had been sent to Rampton rather than to an ordinary prison … [They were] mentally unbalanced … anti-authoritarian, prone to lie or exaggerate … [and] could well have old scores which they were seeking to pay off".
The ruling in the above case is clearly only applicable to cases involving mentally disordered people who have committed criminal offences. However, it has served to encourage the discriminatory belief that people with mental health problems or learning disabilities, particularly special hospital patients, can never be believed.
§ A number of inquiries have taken place into all three special hospitals in the past 20 years. Several of those have either looked specifically at allegations of ill-treatment of patients by staff or have raised that as a major cause for concern. Many of those inquiries commented on the inadequacies of the hospital complaints procedures and the difficulties faced by patients in getting their complaints taken seriously.
§ Patients in special hospitals are clearly vulnerable and should be entitled to protection against abuse and ill-treatment. They should therefore be able to pursue allegations of abuse against them and be eligible for the special measures available under this Bill to enable them to give their best evidence in court. It is then for the court to decide the weight of the evidence put before it as in other cases. It is possible that provisions in this Bill will make the ruling in R v. Spencer redundant. The amendment seeks assurances, for the avoidance of doubt, that vulnerable witnesses will not be excluded from the Bill's provisions purely 1651 on the grounds that they were patients in special hospitals and detained under the Mental Health Act. I beg to move.
§ Lord Ackner
My Lords, a shiver always goes down one's spine when one knows that a previous judicial statement is going to be cited. It is always a relief when one finds that the judicial statement emanates from the Appellate Committee of your Lordships' House because, unless there was a minority, there are bound to be four other Law Lords to share the blame. I have merely done the work which they accepted.
I cannot understand the criticism that one should caution a jury to be particularly careful when one is dealing with men of bad character who have been sent, having been convicted of crime, to a special hospital because of their mental state. The amendment states that for the avoidance of doubt,The judge must not warn the jury that it is unsafe".I do not think a judge would so warn the jury. He may well warn the jury that it might be unsafe,to rely on the evidence of a witness on the ground",etc. I do not see what can be wrong in advising a jury to take particular caution in regard to evidence emanating from the circumstances described by the noble Lord, Lord Swinfen. I would be against this amendment.
§ Lord Williams of Mostyn
My Lords, since the Criminal Justice and Public Order Act 1994 and the judgment by the Court of Appeal in the case of Makanjuola in 1995, there is no absolute obligation on the judiciary to warn the jury that a witness is suspect or that the jury should be careful of relying on the evidence without some form of co-operation purely because the witness falls into a particular category.
The judge remains under a duty to ensure that the case for and against the defendant is put fairly and adequately. I agree with the thrust of the remarks made by the noble and learned Lord, Lord Ackner. If the judge finds some evidential basis for suggesting that the witness's evidence may be unreliable, it is the judge's duty to decide what he should say, in what terms, according to the situation of the witness in a particular trial.
The Bill redraws the law on competence. It provides special measures for certain witnesses, but I could not accept the proposition that no comment could be made in the circumstances described by the noble Lord, Lord Swinfen, and the noble and learned Lord, Lord Ackner. We should not constrain a judge summing up or a magistrate approaching a witness's evidence in that way.
When we talk about best quality evidence, we mean evidence that is as coherent as the witness, with such assistance as is appropriate, can give—evidence that is as complete and coherent as the witness can manage. If he needs help, so be it. That does not mean that the evidence of persons under a disability should have any more or less status than the status that would be attached if those persons were not in need of special measures. That still means that an untruthful witness is still 1652 untruthful, even if assisted with special measures. A misguided witness in those circumstances may remain a misguided witness.
One ought not to place an absolute prohibition on a judge coming to his conclusion as to what he ought to say about evidence that may be suspect. In this circumstance, recognising that this is a boomerang that will come back to strike me on the head later, we ought to leave it to the discretion of the judges in this particular defined circumstance.
§ Lord Swinfen
I shall read with considerable interest, as will my advisers, the Minister's remarks. This probing amendment is designed to make certain that patients in special hospitals are not automatically considered to be guilty and making a nuisance of themselves, but to ensure that they have a fair opportunity; that if they are mistreated, justice is done to them.
If their evidence in court appears dishonest to the judge, it will appear to be dishonest also to the jury. The judge has a right and duty to draw that fact to the jury's attention. But such witnesses should not be considered before they even stand to give evidence necessarily to be unreliable and not to be trusted. One has to see the evidence. As has been said before, the demeanour of the witness must also be seen. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 33 [Complainants in proceedings for sexual offences]:
§ Lord Thomas of Gresford had given notice of his intention to move Amendment No. 48:
§ Page 24, line 5, at beginning insert ("Without the leave of the court,").
The noble Lord said: My Lords, I can just imagine the tabloid headlines:
Gotcha! New Labour supports the discretion of the judges".
Indeed, that has to be a tabloid headline for tomorrow.
§ I do not propose to move Amendment No. 48 at this time. This is a matter which engaged your Lordships' House in Committee for well over an hour and a half some weeks ago. It is not appropriate for me to seek the opinion of the House at this late hour and with so few noble Lords present in the Chamber. Therefore, this is a matter to which I shall return on Third Reading.
§ [Amendment No. 48 not moved.]
§ Lord Ackner had given notice of his intention to move Amendment No. 49:
Page 24, line 10, at end insert—
("except with leave of the judge who shall give leave if, and only if, he is satisfied that it would be unfair to the defendant not to be at liberty so to cross-examine.").
The noble and learned Lord said: My Lords, I adopt the same approach mutatis mutandis and, accordingly, will take up no time of the House.
§ [Amendment No. 49 not moved.]1653
§ Baroness Mallalieu had given notice of her intention to move Amendment No. 50:
Page 24, line 10, at end insert—
("( ) This section shall not come into force 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 this section into force for the reasonable protection in criminal proceedings of witnesses who are complainants in sexual offences.").
The noble Baroness said: My Lords, for the same reasons, I propose not to move Amendment No. 50 tonight.
§ [Amendment No. 50 not moved.]
§ [Amendment No. 51 not moved.]
§ Clause 35 [Direction prohibiting accused from cross-examining particular witness]:
§ [Amendment No. 52 not moved.]1654
§ Clause 36 [Further provisions about directions under section 35]:
§ [Amendment No. 53 not moved.]
§ Clause 37 [Defence representation for purposes of cross-examination]:
§ [Amendments Nos. 54 and 55 not moved.]
§ Moved accordingly, and, on Question, Motion agreed to.
§ House adjourned at fourteen minutes before ten o'clock.