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Furthermore, in subsection (8), the court "may take into account" a number of additional criteria.
It seems to me that the floodgates argument lies behind the Government's attitude--but there are plenty of dams in the way of the flood to prevent abuse of the proposals. The Government seem anxious, however, that the provision, if enacted, would be the subject of abuse. So
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Section 271 of the 1995 Act stipulates that a person appointed as a commissioner
I was once appointed a commissioner on behalf of the High Court to take evidence from a witness who was not expected to survive until the date of the trial. Indeed, that proved to be so. I remember that a difficult question arose about an objection taken to certain of the evidence being sought to be led. If, therefore, we are to extend the circumstances in which a commissioner may require to operate, it will be not just membership of these bodies but practical experience that will be important. So I suggest that the Minister consider qualifications by way of experience before extending the number of occasions when commissioners may be asked to sit in judgment.
I reiterate: this should not be a partisan matter. The speeches made thus far today have clearly shown the mood of the House. The Minister would do himself a lot of good--and would ultimately do the administration of justice a great deal of good--if he thought again about this point.
Mr. Canavan:
I speak in support of new clause 7, which was so ably introduced by my hon. Friend the Member for Dumbarton (Mr. McFall). I did not serve on the Standing Committee dealing with the Bill, but I can well understand the desire to afford special protection in court proceedings to vulnerable persons, including taking evidence in advance on video recordings, giving evidence on live television, and the use of screens.
New clause 11 restricts the definition of "vulnerable person" to a child or
There is wide support for the principle of new clause 7 throughout the country, particularly among professionals and voluntary organisations that specialise in caring for
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The Minister is a reasonable man and I am sure that he does not want those circumstances to develop or be allowed to continue. I hope that he will be persuaded to think again and ensure that the courts give adequate protection to all witnesses, including witnesses who may be vulnerable because of a mental disorder.
I think that I heard the Minister say earlier that he was willing to consider the matter further and possibly introduce an appropriate amendment in the House of Lords. Why on earth has he not introduced an appropriate amendment in this House? What is wrong with new clause 7, which seems to be technically good, with no drafting faults? Why cannot the Minister just accept new clause 7 and help to ensure that people who suffer from mental illness and are called as witnesses in court have a much fairer deal?
Mrs. Maria Fyfe (Glasgow, Maryhill):
May I add my own brief comments on new clause 7, which I too believe should not divide the House? Will the Minister answer some questions about vulnerable child witnesses who do not necessarily have any mental disorder? He will recall that the matter was raised in Committee, and I remember the Secretary of State nodding in agreement with me earlier when we discussed the matter in the Scottish Grand Committee.
I pointed out that there have been occasions when someone has been accused of committing dreadful crimes against a very young child, and the child's evidence has not been called, on the ground that he or she is too young. It is obvious that some people might choose such young victims for the very reason that the children are too young for their evidence to be listened to seriously in court. The Minister may remember that we discussed that in Committee.
There should be ways of ensuring that a child who is capable of giving a truthful account of events and who is capable of accurate recall should not have his or her evidence disregarded on the ground that he or she cannot grasp abstract concepts such as telling the truth and understanding an oath.
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I see nothing in new clause 11 in that regard. If the Minister plans to take the issue forward in the House of Lords, I should be glad to hear from him about that tonight. I hope that he has not simply forgotten about the matter, which caused concern in Committee. The Bill should not complete its passage without addressing the possibility that the evidence of very young children might be disregarded because the children are so young.
Ms Roseanna Cunningham (Perth and Kinross):
I shall speak to new clause 10, which is similar to new clause 7. Much of what I intended to say would echo what has already been said by other Opposition Members, so I shall not go over the same ground.
We support the principle of extending protection to adults with learning disabilities, for which the Government new clause provides. As has been pointed out, however, that still excludes people with mental illness. Opposition Members seek a provision to include such people.
I am unclear why the Government seem unable to accept that the mentally ill should be provided with that protection. I have listened to the Minister. The hon. and learned Member for Fife, North-East (Mr. Campbell) echoed my impression that the floodgates argument might underlie the Government's attitude. Will the Minister tell us his specific concerns about extending the provision to include those who are mentally ill? I hope that he will accept that Opposition Members are genuinely puzzled about his refusal thus far to countenance that extension.
The concerns of various organisations have been rehearsed, and they are shared by Opposition Members. I ask the Minister to bear in mind the point made by the hon. Member for Greenock and Port Glasgow (Dr. Godman), that victims are witnesses too. When we speak of extending protection for vulnerable witnesses, we generally mean victims, although in some cases we mean witnesses in the strict sense of the word.
Where necessary, we should extend all the protection we can, within the law, to people who are vulnerable. I do not understand the argument that those who are mentally ill do not come within the group classified as vulnerable. I beg the Minister to tell us clearly what the problem has been thus far.
Dr. Godman:
I remind the hon. Lady that more and more mentally ill people are living in the community as a result of so-called community care policy. If they are more vulnerable as a consequence--as many obviously are--they are surely entitled to the protection that we traditionally afford to children.
Ms Cunningham:
The hon. Gentleman makes an extremely good point, and I thank him for his timely intervention. An increasing number of such persons on the street means an increase in the likelihood of their appearing in court as vulnerable witnesses. As a consequence of the nature of the lives that many must lead, they increasingly appear in court as victims of crime or as witnesses to incidents.
We are discussing those with serious mental illnesses such as manic depression and schizophrenia, and I do not think that hon. Members would deny the serious effects of those illnesses on individuals and their ability to cope
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The fact is that many people who do not have mental disorders find formal court proceedings very stressful. I refer not only to High Court proceedings for murder but to all sorts of proceedings. Elderly people may feel stressed if compelled to give evidence in court. My mother had to give evidence in a summary case and she was quite worried about the prospect. She is in her 80s and does not suffer from any illness or disorder. If ordinary folk suffer such stress, the pressure on someone who suffers from mental illness must be even greater. As other hon. Members have said, I fear that cases simply will not go to court because people are not capable of dealing with the stress or because valuable witnesses to serious incidents cannot be considered reliable witnesses during court proceedings. That means that their evidence may be lost in serious cases.
These issues are important to the way in which our law operates. We are very proud of our system of justice in Scotland. It has its faults--as does every justice system in the world--but we are justly proud of the way that the system in Scotland has developed, the traditions that have grown up over the years and the way in which it has been able to change and adapt to circumstances.
"must be, and for a period of five years have been, a member of the Faculty of Advocates or a solicitor."
So qualification to be a commissioner under current law, restated in this legislation, is merely membership of either the Faculty of Advocates or the Law Society of Scotland. If vulnerability conditions are to be extended so that more commissions may need to be held, the Government will be wise to think again about whether mere membership of one of those bodies is qualification enough.
"any person of or over the age of 16 years who appears to the court to suffer from significant impairment of intelligence and social functioning",
whereas new clause 7 extends the definition to include vulnerable witnesses, which means
"a witness aged 16 years or over whom the court determines to be suffering from mental disorder as defined in section 1 of the Mental Health (Scotland) Act 1984".
That seems to be a tight definition. As the hon. and learned Member for Fife, North-East (Mr. Campbell) just said, it would not exactly open the floodgates, so I cannot see the Minister's reasoning in resisting the new clause.
"It is the view of FDAMH that at present some individuals with mental illness find it impossible to appear in court as witnesses because of the possible stress of the court appearance and of fear of ridicule or intimidation."
Those feelings are echoed by the Scottish Association for Mental Health, which says in a letter:
"We have experience of the distress caused to people who are mentally ill when faced with court proceedings. One case which came to us was of a person being harassed in her home by a group of local teenagers. The police wanted to prosecute, but the woman was unable to cope with the prospect of confronting the teenagers in court and so the abuse continued."
If such circumstances are allowed to prevail, justice will be denied to many people with mental illness, with the result that crimes will go unpunished and many people will be denied the protection of the criminal justice system. Alternatively, they may be persuaded to go, or even be pressurised into going, to court to give evidence and the whole experience may be such an ordeal that they risk having a further mental breakdown.
4.30 pm
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