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On the subject of safeguards against abuse, the Government seem concerned that, if "mental illness" were allowed as a ground for applying for vulnerable witness

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protection, that would open the floodgates and allow anyone who might find court proceedings stressful to get a doctor's certificate exempting him from proceedings. However, new clause 7 has safeguards built into it. The court has the final decision as to whether the person has a mental disorder that justifies the use of vulnerable witness protection. The court can ask for further evidence before making a decision. It could call for psychiatric reports rather than simply relying on a report from a general practitioner. The court would be free to dismiss frivolous claims such as that of a person who is normally well claiming that his anxiety about a court appearance was a mental illness. The court would not be obliged to accept that excuse.

The Minister knows that Enable has petitioned him on another issue related to new clause 11--the questioning of people with mental disorders. In Committee, the Minister said that the proposal contained in an amendment that I tabled was desirable and he promised to ensure that an appropriate adult would be present during police interviews. But in meetings that Enable and the Law Society subsequently had with the Minister--for which they were grateful--the Government still expressed reservations about the statutory provision on the basis that it would set a precedent in Scots law and that it would be constitutionally inappropriate for the Government to be seen to be directing the police as they carried out their functions.

However, we understand--I would like the Minister to elaborate on this--that the Government want to introduce non-statutory guidance to the police on the appropriate adult scheme. As I mentioned to the Minister in Committee, there is one problem with that suggestion: non-statutory guidance for questioning such witnesses has been in place since 1990, with little effect. Even were it to be improved, there is no guarantee that it will be operated or that the police or caring agencies will find the appropriate resources to set up and manage such a scheme.

Will the Minister reconsider the issue? He knows the reservations that we expressed in Committee over the Quigley case, where the recommendations were in operation, but the police provisions failed. The Minister must take account of that issue, about which we are seriously concerned. We are grateful for some movement from the Government, but it is not enough for us to have confidence in the Government's new clause, so I press our case.

Dr. Godman: I compliment the Minister on the measure, but I do not think that it is extensive enough. It is fair to say that it represents an improvement in the continuing development in the treatment of vulnerable witnesses in our judicial proceedings.

I asked my earlier question because I am concerned about the extent of the provision of closed circuit television in our courts. The Minister knows that there is such a system in Greenock sheriff court; it is a modern installation that has been used on a number of occasions. The first occasion was characterised by the child witness telling the prosecuting counsel where to go and how to get there and walking out of the interview room, but there is no doubt that the system has been a success. There may be cases where people have to travel long distances in order to give evidence through a CCTV system.

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Will the Minister tell me whether the promise he has just made would allow a person suffering from schizophrenia or manic depression to be given the sort of protection outlined in the Criminal Procedure (Scotland) Act 1995? Again, I tried to intervene make this point earlier. The Minister referred to an order which dealt with persons suffering from certain conditions. The Lord Advocate or the Minister--and possibly their officials, too--might be concerned about the ability of some individuals to fake the symptoms of schizophrenia or manic depression.

In a recent case, a man was sent to the state hospital, Carstairs, ostensibly suffering from schizophrenia. Later, when this malingerer was caught out, it was alleged that he had fooled several psychiatrists. I believe--the Minister will be able to confirm this--that the procurator fiscal involved had the man charged for that form of medical malingering. Are the Government concerned that people might try to fake such illnesses?

To be fair-minded, I admit that there are cases, such as the man at Carstairs, of persons involved in criminal proceedings faking schizophrenia. I was told by a psychiatrist of three cases in which individuals were able to fake, fairly cleverly, some of the symptoms of schizophrenia. All three had had psychedelic experiences induced by the use of LSD, so they had some experience of the sort of mental state suffered by a person suffering from schizophrenia. However, I assure the Minister that such cases are rare and that the literature does not demonstrate that such people are successful--inevitably, they are caught out by psychiatric examinations.

If the Minister has any worries in that respect, I should have thought that the individual's medical history would be a powerful form of assessment, as would examination by psychiatrists who are skilled in the relevant field. I therefore hope that his reluctance to extend his new clause is not prompted by the fear of people faking such illnesses. We are, of course, talking about witnesses and not those charged with offences. It would be perfectly in order to extend the new clause to allow individuals suffering from some form of schizophrenia or those bedevilled by manic depression to be given the same sort of protection that is now afforded to young children in our courts.

What the Scottish Association for Mental Health has to say in its brief is well worth the Minister's attention when he is considering whether to extend the new clause. At page 2, paragraph 5, the brief states:

"It can surely be in nobody's interests that people who are managing to live with a major mental illness should be precipitated back into relapse, perhaps involving a costly hospital admission, and causing great distress to them, their families and friends. The Sheriffs Association, which represents all serving sheriffs in Scotland, supports this view, as does the Law Society of Scotland."

As has been mentioned, the Disability Discrimination Act 1995 provides a measure of protection to persons suffering from mental illness.

The same brief states in the following paragraph:

"Under the Disability Discrimination Act. It seems ironic that a Government which only last year published an Act outlawing discrimination on the grounds of disability, should now discriminate against people with mental illness, who are in theory protected by the Act."

Is there a discrepancy--I look forward to the Minister's answer--between the new clause and the relevant section of the Disability Discrimination Act? If there is, any anomaly should be eliminated in the interests of such people.

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The brief continues:

"If the Government accepts that some learning disabled people might need vulnerable witness protection why can it not accept that some mentally ill people may as well?"

Has the Minister decided against extending the new clause on the ground that a case involving, for example, evidence given by someone suffering from schizophrenia or manic depression which leads to a conviction of the accused person might be appealed by the defendant's lawyers? I would not have thought that that would be the case. I cannot think of a case in Scotland or, indeed, south of the border in England and Wales where a conviction that involved the giving of evidence by a vulnerable witness using CCTV or evidence taken on commission has been appealed on the ground that the accused was unable to face one of the witnesses for the prosecution. While the measure being offered by the Minister today is to be welcomed, it is regrettable that it has not gone further in seeking to protect people who suffer from a mental illness.

I have already mentioned the fact that, in a few cases over the past 20 years, both here and in America, people have, for a while, been able to simulate the symptoms exhibited by genuine schizophrenics or manic depressives. However, such cases are extremely rare and should not deter the Government from extending this welcome measure.

Mr. Menzies Campbell: This issue should not be a partisan one that divides the House along party lines. It raises an important feature of the nature of criminal procedure in our courts and the extent to which we are willing to create circumstances in which any individual, whatever handicap he or she may be subject to, is able to contribute to the judicial process.

Like other hon. Members, I have received the brief from the Scottish Association for Mental Health, but I do not intend to refer to its terms in detail. The hon. Member for Dumbarton (Mr. McFall) read eloquently from the brief and the issues are clear and positive in the minds of those participating in this debate. The strength of the case made by the hon. Gentleman was if not overwhelming, at least of such a nature that the Minister should think carefully about whether he should take the matter away and give it further consideration.

The basis of the Government's opposition to the extension being proposed appears to rest in that rather hoary old statutory chestnut, the floodgates argument. In this particular case, though, as subsection (7) of the new clause makes clear,

"The court may grant an application under subsection (1), (5) or (6) above only on cause shown".

That is to say, the court has to be satisfied in any particular case that it is legitimate to go ahead in the light of the procedures set out in the new clause; and the court must have regard to the criteria set out there.

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