HL Deb 15 July 2003 vol 651 cc837-46

House again in Committee.

Clause 50 [Live links in criminal proceedings]:

[Amendment No. 132A not moved.]

Viscount Bridgemanmoved Amendment No. 132B: Page 36, line 2, after "o' insert "justice, and of The noble Viscount said: In moving Amendment No. 132B, I shall, with the permission of the Committee, speak to Amendments Nos. 132C and 132E.

Amendments Nos. 132B and 132C concern the criteria that must be fulfilled before a direction can be given to hear a witness's evidence via a live link. Under the Bill, the court must be satisfied that, it is in the interests of the efficient or effective administration of justice for the person concerned to give evidence in that way. The amendment would ensure that the court considered justice as a specific and separate test and before the test for efficiency and effectiveness.

We agree that efficiency and effectiveness are vital components of the criminal justice system, but we should remember that they should be secondary to the primary purpose of the criminal justice system—justice. Effectiveness must remain a means to an end, not an end in itself.

Amendment No. 132E would amend subsection (8). The current drafting creates an obligation on the court to state in open court its reasons for refusing an application to allow a witness to give evidence via a live link. However, the clause does not mention similar provisions for occasions on which such an application is to be granted. Such an omission could be interpreted as meaning that only a refused application might require justifying and must be subject to appeal. There might be good reasons for opposing an application and reasons would be required in order to appeal against it being granted. In such cases as this, the appeal process would be made easier if the court stated its reason for granting an application. Is it the Government's intention not to allow a right of appeal at all against a decision to grant an order? Would such a stance, if this is indeed the case, be compliant with the Human Rights Act? I look forward to the Minister's response. I beg to move.

Lord Thomas of Gresford

I shall speak briefly to Amendment No. 132D. Clause 55(4) refers to the extent, to which a person is unable to see or hear by reason of any impairment of eyesight or hearing", and that it, is to be disregarded for the purposes of subsection (2)", which is, in fact, the definition of the live link. I should like an explanation of that. But the purpose of the amendment is to ensure that when the court decides to give a direction under Clause 50, it should make sure whether a direction might tend to inhibit any party to the proceedings from understanding the evidence of the witness, as well as merely effectively testing it.

Baroness Scotland of Asthal

Perhaps I may say straight away that I understand the concerns which underlie the amendment, but I can give an assurance that we intend that the court should take into account all the circumstances of a case when determining whether a live link direction should be given. That is made clear in Clause 50(6). Subsection (7) lists a number of the most important circumstances which would necessarily form part of any "interests of justice" consideration.

Clause 50(7) provides a list of many of the relevant issues, including the need for the witness to attend in person, the importance of their evidence, the suitability of the facilities at the remote location, about which I know the noble Lord is concerned, and, crucially in this context, whether a direction might tend to inhibit any party to the proceedings from effectively testing the witness's evidence.

The list of circumstances is not intended as an exhaustive list, but merely as a guide to the kind of considerations that the judge may wish to take into account. It is therefore the intention that the court should have regard to any wider "interests of justice" considerations as part of this assessment. We believe that it might be helpful to the court to be more specific about the particular factors likely to be most relevant to the primary "efficient or effective administration of justice" test to be applied in this context.

We do not think that it is necessary to have an explicit "interests of justice" test on the face of the legislation. We want the court to be focused on how a live link direction could be in the interests of the efficient or effective administration of justice, as it is on these factors that the provision will have most impact. However, I reiterate that the court can consider all the circumstances in the case before deciding whether to grant a live links direction.

Amendment No. 132C, again in the name of the noble Viscount, Lord Bridgeman, would also alter the test that must be satisfied before a live links direction could be granted. This amendment would require that a live links direction be in the interests of both the efficient and effective administration of justice.

We consider that this is an unnecessarily high threshold. For instance, it may be that the live links direction satisfies one strand of this test, although not the other, but that it is nevertheless appropriate for an application to give evidence over live link to be granted. Perhaps I may cite an example to illustrate the difficulty that we foresee. It may be in the interests of the efficient administration of justice for an expert to give evidence from his place of work over the live link. However, the live links direction may have no impact on the effectiveness of the administration of justice as the quality of his testimony would be of equal value whether he attended court or appeared over the link. In such cases we do not think that the live links direction should be precluded, because all parties may appreciate the benefit of that advice and want to hear it, but it might be difficult to get it in any other way.

Of course it may be the case that it would be in the interests of one strand of the test—for example, the interests of the efficient administration of justice—but that nevertheless in all the circumstances of the case it was not appropriate to grant a live links direction. In such cases the court would not have to grant the live links direction. The scheme is structured in such a way that a direction cannot be given unless it is in the interests of the efficient or effective administration of justice. However, where this condition is met, the court must still consider all the circumstances of the case before deciding whether to grant a live links direction. We think that the right approach is to set a relatively low threshold, and where that is met, to allow the court to consider all the relevant circumstances in deciding whether live links should be used.

However, we do anticipate that where the test is met the court will routinely grant a direction for live links. We have therefore included a specific requirement that a judge or magistrate should give his reasons when refusing an application. Amendment No. 132E would also require the court to give reasons for granting a live link direction. Generally, a court will give reasons for any ruling that it makes. However, we believe that including on the face of the Bill the requirement to explain the reasons for refusing a live links direction will help to ensure that the scheme is applied in a positive manner. This requirement will focus the court's mind on whether any reasons put forward for refusing to use live links are sufficient for the direction not to be granted and therefore should encourage courts to make use of live link directions where they are appropriate. A requirement on the face of the legislation to give reasons where a direction is granted would detract from this positive signal. On that basis we would resist the amendment, not because we do not understand the thinking here, but because we do not consider that it is absolutely necessary.

I turn now to Amendment No. 132D tabled in the names of the noble Lords, Lord Dholakia and Lord Thomas of Gresford. The amendment adds to the list of factors under Clause 50(7). As I have already pointed out, the list set out in subsection (7) is a non-exhaustive list of considerations for the court in deciding whether to grant the live links application. This amendment would add to the list the consideration of whether a live link direction would act to inhibit any party from effectively understanding the witness's evidence.

The list of considerations in Clause 50 is intended to raise the issues that will most commonly arise where an application for live links is made. As a live links direction would not usually have any effect on the ability to understand a witness's evidence, we do not consider that the amendment is appropriate. However, there may be circumstances where a witness needs to he present for his evidence to have the same value as it would if he were in court. For example, this may be the case because he needs to be in court to explain his evidence by handling exhibits. However, this is a factor that is already covered by the existing list in Clause 50(7) as the need for the witness to attend in person is put forward in subsection (7)(b) as a relevant consideration.

If the quality of the picture provided by the live link is such as to impair the understanding of the witness's evidence, then this can be considered under Clause 50(7)(e).

If there are any relevant issues raised by an application that are not covered under the factors advanced by Clause 50(7), these will be able to be considered by the judge. It is not therefore deemed necessary to draw the attention of judges to every conceivable factor that might be of relevance on the facts of individual cases. The noble Lord, Lord Thomas, will know that if the list is so comprehensive and not used in generic terms there is a risk that it may be argued that a factor is outwith the list and therefore cannot be taken into consideration. I know that is not what the noble Lord intends and it is not what we intend. The broad generic term gives a capacity to look at all the circumstances.

Clearly, if a live link direction would for any reason make it more difficult for the evidence to be understood, we would want the court to be able to consider this as a relevant factor. We consider that this is adequately catered for in the existing scheme in the way that I have outlined. We do not therefore consider the amendment necessary.

Furthermore, if the witness needs an interpreter or any other person appointed by the court to assist the witness, then, under Clause 55(2) and (3)(d), it is a necessary requirement that this person be able to see and hear the witness.

I hope that noble Lords are content with the explanation and reasoning I have given and that it can be agreed that Amendment No. 132D is unnecessary. I understand why noble Lords have tabled both species of amendments. It is important that there should be clarity about the way the clause will be interpreted hereafter.

8.30 p.m.

Viscount Bridgeman

I am grateful to the Minister for that comprehensive explanation. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 1320 to 132E not moved.]

Clause 50 agreed to.

Clause 51 agreed to.

Clause 52 [Magistrates' courts permitted to sit at other locations]:

Viscount Bridgeman

moved Amendment No. 132F: Page 37, line 11, after "may" insert "after hearing and taking into account any representations made by the prosecution or defence The noble Viscount said: The amendment relates to Clause 52, which allows magistrates' courts to sit at other locations when the court feels it appropriate to receive evidence through a live link and such a facility is not available at any petty sessional courthouse. It is a very simple amendment which would allow both the prosecution and the defence to make representations to the court about the issue of sitting at another location.

The Bill allows the court to sit elsewhere for the whole or part of the proceedings at a place which could even be outside the petty sessional area. This may mean a large burden on either party with regard to travelling, time and expense. It would seem fairer in the interests of justice to allow the court to hear what such a move would mean to all those involved in proceedings so as to avoid issues of fairness arising later. I beg to move.

Lord Renton

I support my noble friend's amendment. We are here dealing with what the magistrates' court may do. When giving powers to magistrates' courts, I always feel it is necessary to be very specific about such powers. The words, after hearing and taking into account any representations made by the prosecution or defence", add to the purpose of the subsection. It is a simple, non-controversial amendment, which I hope the Government will accept.

Lord Hylton

When the Minister replies, will she give the Committee some idea of the number of magistrates' courts where it will be difficult to install live links at the present time? Does she agree that this could have an important bearing on cases involving children and other family matters?

Baroness Scotland of Asthal

I do not know whether I will he able to give the noble Lord the precise details he wants. I am making inquiries because if I can tell him before I sit down I will be happy to do so. However, if I may, I will give a generic answer.

The purpose of the power to sit in other locations is to enable the facilities that exist for evidence to be heard by live link to be fully utilised. It is very practical. When the court is deciding whether evidence should be heard by live link, the parties of the case will be able to put their arguments on this matter to the court. Once a decision to hear evidence by the live link has been made, it would normally be a decision for the court alone as to where it is best for the court to sit to hear this evidence.

The suggestion would be that the live link would be appropriate; the parties would then be heard regarding that issue. The judge or magistrate would then decide that it was appropriate to use live links. Then it is a practical issue of finding the nearest court that has those facilities which is reasonably proximate and convenient. It will be a totally practical matter; it may be very desirable to have it in a court next door, but the court next door may simply not have the necessary machinery.

We would like to have these facilities in all our courts. There is a roll-out taking place—we have a greater number now. I am not at this moment able to give the noble Lord the sort of answer that he wants about numbers, although I may be in one second. Actually, it might be simpler if I just write to the noble Lord.

We do not have a comprehensive programme; we are rolling it out. We would like to reach the stage where all appropriate courts have appropriate facilities. I agree with the noble Lord, Lord Hylton, that, given the sensitivity surrounding cases involving children, we have to have the most appropriate place. That will obviously be taken into account when submissions are made as to whether the live link is appropriate and how it should be dealt with.

Lord Hylton

Would the Minister be kind enough to place a copy in the Library?

Baroness Scotland of Asthal

I would be more than happy to do that.

This is the only import of this provision—it is purely practical and I am sure that if defence counsel and prosecuting counsel can come up with some more machinery very close by, the court will avail itself of that opportunity.

Viscount Bridgeman

For clarification, does the Minister regard it as implicit in the Bill as it stands that representations by the prosecution or defence will be taken into consideration by the court?

Baroness Scotland of Asthal

I should think it is, but when they are considering whether the live link is appropriate to be used, there might at that stage be discussion about where to do it, how it will be done, who will be there and whether there will be an interpreter. All those matters will be taken account by the judge or magistrate in making the decision that live link is either appropriate or inappropriate. Once they have decided that it is appropriate and they have heard the submissions, the most practical location nearest to the court which is convenient to everyone is likely to be chosen. It is not likely that there will be any need for further submissions on that.

Viscount Bridgeman

I am most grateful to my noble friend Lord Renton who, with his great experience, has supported the amendment. However, I hear the Minister's explanation, and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 52 agreed to.

Clause 53 [Warning to jury]:

Viscount Bridgeman

moved Amendment No. 132G: Page 37, line 21, leave out subsection (2). The noble Viscount said: In speaking to Amendment No. 132G, I shall also speak to Amendment No. 132H. Both amendments seek to probe the provisions of Clause 53, which states in subsection (2) that where, evidence has been given through a live link", the judge, may give the jury … such direction as he thinks necessary to ensure that the jury gives the same weight to the evidence as if it had been given by the witness in the courtroom or other place where the proceedings are held". While we recognise that the subsection gives the judge some discretion by using the word "may" rather than "must", we still feel that it fetters judicial discretion with regard to the weight that should be given to live-link evidence. We recognise the need for giving evidence by live link, and can see its benefits. However, there is a qualitative difference between evidence given in a courtroom, with the immediacy of the response and the atmosphere, and evidence given in separate accommodation. There will, for example, be differences in the body language, which will influence the jury's assessment of the credibility of the witness. The judge must retain a discretion to direct the jury as to what weight they may give to such evidence. It is difficult to assess accurately the demeanour of a witness over a live link.

It is a fact that technology varies from one courthouse to another. Do the Government accept that that is something that should be taken into account? What are the Government's plans to ensure that a uniform high quality of live link is available in all Crown and magistrates' courts?

Amendment No. 132H is a qualified amendment to Amendment No. 132G. I offer it as something of a compromise position. It would ensure that judges, in exercising their limited discretion in subsection (2), would be properly informed and would follow guidelines as set out by the Judicial Studies Board. We do not know how much evidence via a live link will be used in practice; it may be something that a judge comes across frequently, or rarely. A model direction from the JSB would be welcome. Such a model direction should also have the positive effect of preventing unnecessary appeals. I beg to move.

Lord Renton

The amendment moved by my noble friend would leave out subsection (2). It is really a sort of probing amendment, as we could not do without subsection (2)—or something like it in any event—within the clause. However, he has made some points that are really rather necessary to ensure that the warning given to the jury is of the character that it should be and as precise as it should be.

It may be a matter of opinion, but the words, and in accordance with any model direction issued by the Judicial Studies Board", may, alas, be somewhat hypothetical. However, in the important matter of giving warning to juries, we must be as precise as we possibly can in laying down the rules.

I know from my rather long experience that that sort of thing was normally put forward not in statute but in rules of court. One of the several reasons why the Bill runs to such a vast number of pages—something like 347 pages—is because it gets Parliament to give directions that are normally given by the High Court to the judges under rules of court. If we are doing that, we must be as good and precise as the rules of court were. My noble friend has raised points that, in those circumstances, need to be considered by the Government.

Baroness Scotland of Asthal

We have considered them, and I hope that I shall he able to give an explanation to the noble Lord, Lord Renton, and the noble Viscount, Lord Bridgeman, which will hopefully make them feel a little more comfortable.

I am aware that evidence given over a live link may not have the same impact as that given in person in open court. I give the Chamber some reassurance on this matter, as there is a developing body of research that suggests that evidence given in that way does not significantly reduce the effectiveness of the witness's evidence. I should be very happy to write to noble Lords to set out the background of that in more detail if noble Lords would find that helpful. Before I am invited to do so by the noble Lord, Lord Hylton, I should also say that I am happy to place a copy of that in the Library.

When live links are used the fact finders will still be able to see and hear the witness, adjudge his or her demeanour and come to a conclusion about what weight they should place on the witness's evidence. However, in developing these proposals we do not wish to be thought dismissive of these important concerns. There will be issues on which we want to improve if and when we properly can. Thus, in deciding whether to give a direction to use a live link, the court must consider the circumstances of the case including, as I said earlier, whether that would inhibit the testing of the witness's evidence. So if in the particular circumstance the court decides that live evidence is required in order to give those hearing the case a full flavour, that is what should happen.

I can give some examples from research. In 1991, Davies and Noon looked at cases involving child witnesses—an issue about which I know the noble Lord, Lord Hylton, is particularly concerned. They found no significant differences in observer ratings of the effectiveness or the credibility of the testimony and concluded that using links facilitates the giving of evidence by children, who were happier, more fluent and less likely to give inconsistent testimony. So the research we have so far tends to indicate that it is a good thing.

Clause 53 provides that the judge may give such direction as he thinks necessary to ensure that the jury gives the same weight to evidence which has been given through a live link. Amendment No. 132G would in effect remove the effect of this clause. I very much agree with the noble Lord, Lord Renton, that this is a probing amendment. The effect of the amendment as currently phrased would be that there was no statutory guidance about the weight to be placed on evidence given through a live link. That may result in a little confusion about the status of such evidence and whether it should be accompanied with a warning as to how the evidence is used. That would clearly be unsatisfactory as there is no reason why evidence given through a live link may not be accorded the same weight as evidence given in court.

The clause does not oblige the court to give any direction; the judge will do so only if he or she considers it necessary. The judge may decide because of the way in which the trial has proceeded that it might be helpful to reiterate or re-emphasise that the evidence should be treated absolutely the same. However, the clause is a useful guide as to the weight that should be accorded to evidence over live link.

I understand that Amendment No. 132H, also tabled by the noble Viscount, Lord Bridgeman, proposes that directions under Clause 53 should be made in accordance with any specimen direction given by the Judicial Studies Board. As we know, the Judicial Studies Board is an independent non-statutory body. As it has no legal identity, it is not desirable to refer to it in legislation. I see the noble Viscount nodding. Furthermore, it may be that the Judicial Studies Board may not consider it appropriate to give a model direction in this area. The bench book of the Judicial Studies Board's directions does not currently contain any model direction concerning the weight to be attached to evidence given over a live link. The desirability of producing such a direction will be considered by the criminal committee of the JSB once Parliament has completed its consideration of the Bill. If no direction were issued, the amendment would be redundant and could cause confusion.

In any event, the model directions contained in the JSB Criminal Bench Book do not have any independent legal status. As the foreword to the bench book makes clear, the directions are not intended to lay down or develop any principles of criminal law, but merely to reflect the law as it stands. Noble Lords know that it will be updated very regularly as the jurisprudence changes.

As the noble Lord, Lord Renton, rightly said, legal principles are decided by the Superior Courts and the JSB directions become authoritative only when and to the extent that they have been expressly approved or adopted. In view of that, it would not be appropriate for any individual direction to be given an authoritative status in legislation in advance of its production and consideration by the appellate courts.

I understand that the noble Lord is anxious to know how guidance will be used. However, the vehicle we are discussing would not be appropriate or effective.

Lord Renton

Before the noble Baroness sits down, speaking for myself, I am grateful for the explanation that she has given. But I am still puzzled as to why we should be legislating on these somewhat technical matters which affect the administration of justice but have always been satisfactorily dealt with by rules of court which can so easily be amended from time to time. The Government will not want this statute amended very often.

Baroness Scotland of Asthal

I absolutely understand what the noble Lord, Lord Renton, says and I agree with him. We are seeking to use live links in a significantly different way from the way they have been used before. At the moment the use of live links is still unusual for us. We are used to the full panoply of hearing evidence in the normal way. If we had been asked 15 years ago what we thought of a fax we would all be rather nervous about how and when it should be used, but now we are very comfortable with it. The noble Lord, Lord Renton, was right to make the remarks that he did, but we believe that as it is a new measure and because we are extending it much more broadly, it is important to highlight it in the way that we have. We think that that is important but we take on board what the noble Lord said. We believe that we have the matter about right and that the proposed further amplification or definition on the face of the Bill is not necessary.

Viscount Bridgeman

I hope that the Minister will take on board the general remarks of my noble friend Lord Renton about the practice of including in the Bill a detail which would otherwise have been included in rules of court. Bearing in mind that I think this part of the Bill was not debated at all in another place, the Minister's offer of a letter is much appreciated. I should like to take up that offer. I, too, am grateful for the Minister's comprehensive reply. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 132H not moved.]

Clause 53 agreed to.

Clauses 54 to 56 agreed to.

Lord Bassam of Brighton

I beg to move that the House be now resumed.

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

House resumed.

House adjourned at six minutes before nine o'clock.