House of Commons Hansard Debates for 17 Oct 1990

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considerable analysis and work. I hope that the hon. Gentleman will not think that my reaction is the automatic reaction that one might expect from someone involved in the law.

I do not claim to have the experience of defending in the criminal courts that the hon. and learned Member for Perth and Kinross (Sir N. Fairbairn) has, but I have had the advantage of prosecuting and defending and I suspect that that may entitle me to claim a rather more rounded view of the difficulties to which the new clauses may give rise. The hon. Member for Glasgow Garscadden (Mr. Dewar) has referred to some of those difficulties already. But it is also important to realise that new clause 24 applies not simply to cases involving assaults on children, as its language makes plain. It says that the court will have the power available to it

"where a child has been cited to give evidence in a trial". That means any trial.

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There may well be cases in which it is not the prosecution but the defence that seeks to take advantage of the new clause. The defence may judge it in the interests of the accused to create the kind of artificiality to which we shall undoubtedly be subjected if the child is in another room while the proceedings of the court are taking place in the courtroom.

One important issue has not been addressed so far. The accused person is not represented by counsel or solicitors in every case ; he may choose to represent himself. In such cases, the court is slow to allow anything to happen that may be prejudicial to the accused by reason of the fact that he or she is not legally represented. It has been suggested that we might follow the Canadian model and have counsel or solicitors in the same room as the child witness. The whole purpose of the new clause would be defeated if the accused was representing himself and went with the prosecutor to the room where the child was being kept. The proposal is by no means

straightforward.

Moreover, one should not underestimate the difficulties for the prosecutor if the child is to be kept in a room away from the court. Often a stage is reached in a child' evidence at which, for a whole variety of reasons--some of which have been canvassed--the child becomes reluctant to continue and needs to be prompted. Those who have prosecuted in cases that involve children giving evidence know that there are certain devices that one can use. One may adopt a slightly different tone. Within the bounds of proper questions, and not transgressing by the use of leading questions, one may remind the child of some factor that may persuade him to remember his evidence. We should not discount, or be unaware of, the difficulties that may be caused to both prosecution and defence in the ordinary conduct of criminal proceedings if those proceedings are conducted in accordance with the new clause.

The new clause lists a number of factors that the court must take into account in considering whether to allow such an application. Absent from that list of factors is something that is an essential feature of all criminal proceedings--fairness to the accused. As the hon. Member for Greenock and Port Glasgow said, the purpose of this innovation is to prevent children from having to suffer the additional traumatic effects of having to give evidence about extremely unpleasant events in which they may have been involved. But however laudable and desirable that

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purpose may be, it must always be subordinate to our overriding purpose, which is to convict the guilty and to ensure that the innocent are not convicted. The absence of any reference to fairness to the accused in the critieria set out in the new clause is certainly worthy of note and, in my view, gives rise to some concern.

Like the hon. Member for Garscadden, I am especially apprehensive about the effect of new clause 26. I intervened in the Minister's opening remarks to say so, and you, Mr. Deputy Speaker, had to chide me for the length of my intervention. It was only a reflection of my concern.

Suppose that, on a previous occasion, a child has identified someone who is subsequently charged and who is an accused person in criminal proceedings. It would appear that, however informal the circumstances were, and whatever the nature of the relationship between the child and the person to whom the identification was made, it would be open to that person to come to the court and say that that identification was made.

Those of us who have participated in criminal trials involving children know that there is the constant fear of coaching. Such an identification may well have been made in response to a series of leading questions--to questions of an interrogatory nature and questions that might contain some threat or inducement. Nevertheless, the identification would become admissible in evidence. Moreover, under new clause 26, the fact of the identification having been made would still be a matter on which the child, and the person to whom it was made, could be cross-examined.

No doubt the Minister has given careful consideration to the cases of Muldoon v. Her Majesty's Advocate and Bennett v. Her Majesty's Advocate and will know the extent to which the High Court of Justiciary has departed from the apparently inflexible rule that identification could be carried out only in the presence of the accused in the course of the proceedings. But I wonder whether careful consideration was given to the effect that this new clause, which is designed to protect children, would have and to the extent to which it may innovate in respect of the principle of fairness to the accused person.

Sir Nicholas Fairbairn (Perth and Kinross) : I apologise for not having been here throughout the debate.

I support new clause 24 because I think that it represents the best way of not putting odium upon an accused person. The protection of the accused lies in the fact that there must be an application to justify. It is not a matter automatic ; the procedure must be justified by application to the court. That is most important. I should also like to bring to the attention of the hon. and learned Member for Fife, North-East (Mr. Campbell) something that I did not know until last week. Apparently, in England, an identification in court--which I have always thought pretty suspect--is not valid.

Mr. Campbell : On the latter point, I have never known the hon. and learned Gentleman to be anxious to import into the procedure of the law of Scotland things that take place in England. At the centre of our criminal procedure has been the fact that identification must be live identification, although that was watered down to some extent by the views expressed by the court in the case of Muldoon v. Her Majesty's Advocate.

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In respect of new clause 26, I have tried to illustrate the kind of difficulties that may arise when one embarks on an innovation in the established procedures. The motivation behind such innovations may be of the best but they may raise important and significant issues of principle none the less. I understand that, as the hon. and learned Gentleman said, any application under new clause 24 can be granted only by a court if an application is made to it. The language of the new clause states "on cause shown". I understand that, but, as I said before the hon. and learned Gentleman joined us in the Chamber, fairness to the accused must stand at the centre of our criminal proceedings. My concern is that the absence of an express reference to that among the factors that the court must take into account is a serious omission.

The mood of the House, the country and those who are concerned with these matters is that something should be done to try to assist the giving of evidence by children. It would be churlish and small-minded to try to stand out against that. However, as the hon. Member for Garscadden seemed to imply, I believe that we are embarking upon a substantial innovation that may well give rise to difficulties of which we have not yet conceived in the short time available for our debates.

In those circumstances, there is a substantial obligation on the Minister to give an undertaking that there will be the most careful monitoring of what takes place. On the issues of identification and the effective representation of an accused person, we need an undertaking that those matters will be examined with great care to ensure that no prejudice arises. It would be most unfortunate if, in our anxiety to do well by children, either through inadvertence or omission, we created circumstances that caused great unfairness to accused persons.

As has been said many times, it is a question of balance. I am prepared to take a bet on the balance being established by these provisions. None the less, I feel it important to enter these reservations and to urge the Minister to ensure that this innovation in our law does not pass unmonitored and that its effects are properly taken into account and understood.

Mrs. Margaret Ewing : I intend to be brief, Mr. Deputy Speaker. I wish first to congratulate the hon. Member for Greenock and Port Glasgow (Dr. Godman) on his assiduous work over a considerable period, which has brought this matter eventually to the Floor of the House. It is a pity that we did not have an opportunity to explore this issue in more detail in Committee, because this is a significant innovation. I share the hon. Gentleman's concern because I, too, do not belive that the provisions go far enough. I share his disappointment that pre-trial video depositions are not to be introduced because that would have been a major step forward. I listened with great interest to the hon. and learned Member for Fife, North -East (Mr. Campbell). I found it difficult to understand many of his technical legal arguments. He seemed extremely pessimistic about the venture upon which our legal system is now embarking. We have a responsibility to take such steps forward. My background is in social work training. Anyone who has read case studies of children who have been physically or

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sexually abused knows the trauma through which those children have lived and which they are asked to relive time and time again when asked to give evidence.

This week, many people have been thinking about the horrendous case of the 11-year-old girl who was raped in a ward at St. Helier hospital. We must think of the trauma that that girl and her family have undergone. In similar circumstances in Scotland, we would want to ensure that that child and her family would be spared as many difficulties as possible when bringing the accused to justice and to ensure that it never happens again.

From a humanitarian point of view, the provisions are a step forward for children in our society. I not only wish the new clause every success, but hope that its provisions will be extended to take account of the other points raised not only by the hon. Member for Greenock and Port Glasgow, but also by the Scottish Law Commission. The Minister said that television circuits would be introduced first in Edinburgh and Glasgow. When will that happen? The hon. Gentleman also mentioned monitoring. How long does he envisage the monitoring period lasting? Will it be for a short period or for two or three years? I should like to know how long it will be until a final decision is taken. We should also like to know who will decide whether the experiment has been a success, and the criteria for deciding whether it is a success or a failure.

I know that the Minister will respond positively--I can tell by the look on his face that he intends to refer to these important points. Many people in Scotland are waiting to hear the exact details of his proposals.

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Mrs. Maria Fyfe (Glasgow, Maryhill) : I begin by congratulating my hon. Friend the Member for Greenock and Port Glasgow (Dr. Godman), without whom I am sure that the House would not be discussing these issues. I also want to put on record my great condemnation of the fact that this House saw fit to discuss such relative trivialities as the conduct of the financial affairs of charities for many days in Committee, and yet something as important as this issue has been pushed in at the tail end of our consideration. That is a deplorable sense of proportion. I hope that, when the House is considering a future Scottish law reform Bill, it will give such issues far greater prominence.

I agree with my hon. Friend the Member for Greenock and Port Glasgow that screens could be an important and valuable part of setting a child at ease, reassuring him or her, and making it possible for the child to feel less fear. I hope that we shall see some progress on that in the future.

On the issue of the stage at which a child should be interviewed, I accept that both prosecution and defence must cross-examine the child in the interests of justice. However, I do not understand why anyone should think that that cross-examination should invariably take place as near as possible to the date of the trial. I should have thought that, in most cases, the nearer the date of the interview, carried out by both sides, to the events being complained about, the better. Obviously, when the child already knows the person or persons who are accused, recognition of those individuals is irrelevant. However, when the accused persons are not known to the child, it is clear that the sooner the proceedings take place after the event the more likely it is that the child will properly be able to recall events and to recognise those concerned.

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I was once a witness to a crime and reported the person to the police as having long, greasy red hair, of slim build and about 5 ft. 6 in. tall, but if that person had turned up in court a year later with his hair cut and washed and wearing different clothes, I might not have recognised him if he had not been standing in the dock. It is nonsense to expect a child--possibly a young child--to have clear recall many months after an event.

I turn now to the claim that children never tell lies. They are not capable of telling lies involving events that are outside their experience. A child cannot invent something which he or she has never encountered, because a child could not recognise such things. Children do not invent things that they could have learnt about only from pornographic magazines, for example, if they have never set eyes on them. That means that children are likely to be telling the truth. In the Cleveland controversy, in their anxiety to protect persons from unjust accusations, some people were far too prone to go around saying that children generally tell lies about such events. For the reasons that I have explained, I do not believe that.

Although I accept that, in justice to the accused person, the questioning must be partly adversarial, it should be carried out in such a way as to ensure that it is a seeking out of the truth. The adversarial aspect of a normal trial might rattle and unsettle a child and cause him to keep silent. That is to be deplored and it must be avoided.

Not enough account has been taken of the fact that it is not only the court that might intimidate a child. A child witness in a high court or a sheriff court might have to travel a long way to take part in a trial and might have to stay overnight in an unfamiliar setting. He might have to have breakfast in an hotel dining room and sleep in a strange bed--all that can be unsettling, as any parent will know. Since little can be done about these unsettling events, it is all the more important to try to create as much of an atmosphere of confidence as possible for the child.

I was interested to receive in my mail this week--most hon. Members must have received it too--a newsletter from the Scottish Child Law Centre. It contains an inquiry page on which a social worker dealing with a number of abused children who would be appearing in court to testify had asked the writers of the publication what could be done to ease the position of such children. We have already heard about a memorandum that came out in the summer describing some improvements which have already been made, such as people no longer wearing wigs and gowns, but I think that the advice given to the social worker shows that there is a long way to go yet. It was that

"preparation can sometimes be difficult because of lack of consistency in approaches by judges to the protection of child witnesses".

Such inconsistences must be reduced as much as humanly possible. It should not be left to a judge to decide how he or she should approach the protection of child witnesses. I hope for some code of practice on such matters.

The same publication goes on to refer to a Crown office leaflet entitled "Going to Court", which can be helpful, and to a leaflet which is apparently used for children in English courts, entitled "Susie and the Wise Hedgehog go to Court". It seems that that could be used to some extent in Scotland, and such publications should be used for the benefit of young children. In rarefied debates such as this, we often forget about the language in which young children think.

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All these aspects must be examined much more thoroughly than is possible in these circumstances. The fact that so many judges are elderly and upper class shows the chasm between them and children who may speak broadest Glaswegian. They may not be able to communicate with each other at all.

I agree with other hon. Members that these measures must be carefully monitored. I hope that, next time we discuss Scottish law reform, we shall draw up a comprehensive programme on how to deal with children in Scottish courts and make it an important part of future Scottish legal legislation, instead of treating the subject at the tail end of a Bill as if children hardly mattered.

Lord James Douglas-Hamilton : This has been an important debate in which the need increased protection of children has been accepted. The hon. and learned Member for Fife, North-East (Mr. Campbell) asked whether television links were novel. They are not ; they are already used in England and Wales, and we shall monitor them carefully.

All courts will be directed in matters concerning fairness to the accused and the interests of justice in all criminal proceedings, so these aspects do not need to be expressly provided for.

I agree about the importance of identification, which the hon. and learned Gentleman and the hon. Member for Glasgow, Garscadden (Mr. Dewar) mentioned. At pre-trial identification, the accused will have the right to be represented, but if his representative wishes to challenge the identification at the trial he is free to do so, and if necessary to examine the child on the identification procedures. Informal identification is admissible, and the court can take that evidence into consideration, but it is not required to believe it or to decide the case in accordance with it. The court must weigh the evidence.

I have not seen the television rules in operation in England, but my Scottish Office officials certainly have. We shall draw on their assessment and make certain that the procedures and equipment operate effectively in Scotland. The Guildford courts use voice-activated television rather than fixed television, and that confirms the need for careful monitoring.

I was asked whether the procedures would be applied to proof before a children's hearing. The answer is, not at this stage. We have decided that it is appropriate in the first instance to introduce the live television link procedure for child witnesses in criminal trials, but we shall have to monitor that closely, too.

There are views that screens do not operate effectively to reduce a child's anxiety, so the Government want to proceed initially relying on the Lord Justice General's memorandum and advice to judges, and also on live video links. Screens can be used at present with the consent of the accused and the defence.

Evidence on commission is a judicial deposition. There may be difficulties in taking the child's evidence in parts. We think it better in the meantime to take all the evidence at the trial, if necessary using television links.

Subject to consultation with the judiciary, the starting date in Edinburgh and Glasgow will be 1991 ; and thereafter, following monitoring, throughout Scotland.

The hon. Member for Garscadden asked about regulation. It can be done by Act of Adjournal as appropriate.

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I was asked whether counsel would be in a court room or in a side room with a child. Counsel would remain in the court room. The television link would provide the link between the court room and the adjacent room where the child was.

I was asked about the Home Office circular which follows an English appeal about the use of screens in English courts. In Scotland, screens have been used successfully with the consent of the accused. New clause 24 provides for the court to determine whether these circumstances are appropriate to the use of these special procedures. Before the court reaches a decision, it will have to consider an application from one of the parties, and it will be open to the other party to seek to oppose the application if he or she so wishes. If the application is granted and one of the parties subsequently considers that the trial was not fair, it would be open to that party to lodge an appeal.

This is a major step, and I think that we are right to take it, but we are also correct to proceed cautiously, because we must consider not only the protection of the child but also fairness to the accused.

Question put and agreed to.

Clause read a Second time, and added to the Bill.

New Clause 25

Transfer of cases in which child's evidence is to be given through television link

.--(1) Where a sheriff to whom an application has been made under section ( --Evidence of children through television link in criminal proceedings --) of this Act would have granted the application but for the lack of accommodation or equipment necessary to achieve the purpose of the application, he may by order transfer the case to any sheriff court which has such accommodation and equipment available, being a sheriff court in the same sheriffdom.

(2) The sheriff court to which a case is transferred under this section shall be deemed to have granted an application under that section in relation to the case.'.-- [Lord James Douglas-Hamilton.] Brought up, read the First and Second time, and added to the Bill.

New Clause 26

Identification of accused by child

. Where a court has, or is deemed to have, granted an application made under section (Evidence of children through television link in criminal proceedings) of this Act in relation to a child cited to give evidence in a trial, and the child gives evidence that he recalls having identified, prior to the trial, a person alleged to have committed an offence, the evidence of a third party as to the identification of that person by the child prior to the trial shall be admissible as evidence as to such identification.'.-- [Lord James Douglas-Hamilton.]

Brought up, read the First and Second time, and added to the Bill.

New Clause 27

Interpretation of sections (Evidence of children through television link in criminal proceedings), (Transfer of cases in which child's evidence is to be given through television link) and (Identification of accused by a child)

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. In sections --(Evidence of children through television link in criminal proceedings), (Transfer of cases in which child's evidence is to be given through television link) and (Identification of accused by a child) -- of this Act, unless the contrary intention appears--

child' means a person under the age of 16 years ;

court' means the High Court of Justiciary or the sheriff court ; and

trial' means a trial under solemn or under summary procedure.'-- [Lord James Douglas-Hamilton.]

Brought up, read the First and Second time, and added to the Bill.

New Clause 28

Criminal jurisdiction of sheriff court

. The following subsection shall be inserted at the end of each of sections 3 and 288 of the Criminal Procedure (Scotland) Act 1975 to form subsection (4) and subsection (5) respectively of these sections--

( ) Where an offence is alleged to have been committed in one district in a sheriffdom, it shall be competent to try that offence in a sheriff court in any other district in that sheriffdom.'-- [Lord James Douglas- Hamilton.]

Brought up, read the First and Second time, and added to the Bill.

New Clause 29

Execution of documents by companies

.--(1) For section 36B of the Companies Act 1985 (execution of documents : Scotland) there shall be substituted the following section--

"Execution of documents : Scotland.

36B.--(1) This section has effect in relation to the execution of any document by a company under the law of Scotland on or after 31 July 1990.

(2) For any purpose other than those mentioned in subsection (3) below, a document is validly executed by a company if it is signed on behalf of the company by a director or the secretary of the company or by a person authorised to sign the document on its behalf. (3) For the purposes of any enactment or rule of law relating to the authentication of documents under the law of Scotland, a document is validly executed by a company if it is subscribed on behalf of the company by--

(a) two of the directors of the company ;

(b) a director and the secretary of the company ; or

notwithstanding that such subscription is not attested by witnesses and the document is not sealed with the company's common seal. (4) A document which bears to be executed by a company in accordance with subsection (3) above is, in relation to such execution, a probative document.

(5) Notwithstanding the provisions of any enactment (including an enactment contained in this section) a company need not have a common seal.

(6) For the purposes of any enactment providing for a document to be executed by a company by affixing its common seal or referring (in whatever terms) to a document so executed, a document signed or subscribed on behalf of the company by--

(a) two directors of the company ;

(b) a director and the secretary of the company ; or

shall have effect as if executed under the common seal of the company.

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(7) In this section "enactment" includes an enactment contained in a statutory instrument.

(8) Subsections (2) and (3) above are--

(a) without prejudice to any other method of execution of documents by companies permitted by any enactment or rule of law ; and (b) subject to any other enactment making express provision, in relation to companies, as to the execution of a particular type of document."

(2) Where, on or after 31 July 1990 and prior to the coming into force of this section, a document was signed or subscribed, in accordance with section 36B(2) of the Companies Act 1985 (as inserted by section 130(3) of the Companies Act 1989), by--

(a) a company ; or

(b) a body corporate to which section 36B of the 1985 Act (as so inserted) applied by, under or by virtue of any enactment, that document shall be deemed to have been validly executed by the company or body corporate in accordance with subsection (2) of section 36B of the 1985 Act as substituted by subsection (1) above. (3) Where, on or after 31 July 1990 and prior to the coming into force of this section, the presumption in section 36B(3) of the Companies Act 1985 (as inserted by section 130(3) of the Companies Act 1989) applied in relation to a document, that document shall be deemed to have been validly executed in accordance with subsection (3) of section 36B of the 1985 Act as substituted by subsection (1) above, and subsection (4) of that section as so substituted shall apply to the document as if it bore to be so executed.

(4) For the avoidance of doubt, in determining, for the purposes of subsection (3) above, whether the presumption in section 36B(3) of the Companies Act 1985 (as inserted by section 130(3) of the Companies Act 1989) applied in relation to a document, the reference in section 36B(2)(b) of the 1985 Act (as so inserted) to the last page shall be construed as a reference to the last page of the document excluding any inventory, appendix, schedule, plan or other document annexed to the document.

(5) Any reference to section 36B of the Companies Act 1985 (however expressed) in any enactment (including an enactment contained in a statutory instrument) shall be construed as a reference to section 36B of that Act as substituted by subsection (1) above.'-- [Lord James Douglas- Hamilton.]

Brought up, and read the First time.

Lord James Douglas-Hamilton : I beg to move, That the clause be read a Second time.

Mr. Deputy Speaker (Mr. Harold Walker) : With this it will be convenient to discuss Government amendments Nos. 129 to 135.

Lord James Douglas-Hamilton : The clause has the full support of the Law Society of Scotland. It deals with a complex legal point. It has unanimous support, and it is important for lawyers' practising in commercial law in Scotland.

Question put and agreed to.

Clause read a Second time, and added to the Bill.

Mr. Deputy Speaker : We now come to new clause 5. I call Dr. Norman Godman.

Dr. Godman : With a heavy heart, not moved.

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New Clause 9

Procedure at trial of persons suffering from mental disorder

(1) Sections 174 (Insanity in bar of trial or as the ground of acquittal) and 376 (Power of court to order hospital admission or guardianship) of the Criminal Procedure (Scotland) Act 1975 shall be amended as follows--

(2) After subsection (3) of section 174 there shall be inserted the following subsection :--

"(3A) An Order made by a Court in pursuance of the last foregoing subsection, concerning the detention of a person in a State hospital or such other hospital specified, shall cease to have effect if the person the Order refers to is reprosecuted and the case disposed of by a Court."

(3) After subsection (1) of section 376 there shall be inserted the following subsection :--

"(1A) An Order made by a Court in pursuance of the last foregoing subsection, concerning the detention of a person in a hospital or the placing of a person under the guardianship of a specified local authority or person, shall cease to have effect if the person the Order refers to is reprosecuted and the case disposed of by a Court.".'.-- [Mr. Menzies Campbell.]

Brought up, and read the First time.

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