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Mr. Hilton Dawson (Lancaster and Wyre): Does my right hon. Friend agree that that demonstrates the necessity of parents at all times being part of the youth offender panel? Is there not a loophole in the Bill, in that children who are looked after might sometimes be represented only by a local authority representative? Will my right hon. Friend reconsider that to ensure that parents of children, even when they are looked after--it is perhaps more important when they are looked after--are required to take part in the youth offender panel?
Mr. Straw: I am told that the Bill says that that may or may not be appropriate. The basic principle is clear and runs throughout the Crime and Disorder Act 1998 as well as this Bill. We want parents to be involved and to take responsibility for their children's actions, so far as that is reasonable, but also to recognise that, as the immediate carers of the children and the people most responsible for them--even if a local authority may have care for the time being--they have important responsibilities. I shall reflect on what my hon. Friend says. We should perhaps consider some amendments. As with other aspects of the Bill, we think that this is good, but not perfect, and we are always open to suggestions.
Part II is targeted at victims and witnesses whose youth or disability makes it particularly difficult for them to give evidence at court, and at witnesses who are so frightened or distressed at the prospect of giving evidence that they would rather drop the charges against an alleged criminal than face that criminal in court.
It is worth considering the statistics for witness intimidation, although they show only the tip of the iceberg. In 1995, there were 370 convictions--not complaints--for witness intimidation. In 1993, a study suggested that 75 per cent. of cases discontinued in one month were discontinued because a witness was missing or refused to give evidence. That amounts to 1 per cent. of all criminal cases. Again, that represents the tip of the iceberg.
Mr. Elfyn Llwyd (Meirionnydd Nant Conwy):
Clause 27 provides a bar on witnesses giving evidence in person,
Mr. Straw:
It may be. The hon. Gentleman may wish to approach the Committee of Selection to get on to the Standing Committee. As I have said, we think that the provision is good, but we do not regard it as perfect. This is a complicated area and, if suggestions are made, either in Committee or in writing to my hon. Friend the Minister or myself, we shall consider them constructively.
The Bill reforms the law on competence so that anyone who can understand questions that they are asked and give answers that the court can understand can give evidence at trial, unsworn if necessary. It gives witnesses practical help to give those answers.
Under chapter I of part II, courts will have a menu of measures available to them which they can award to any witnesses who need help to give their best evidence, whether because of a disability, because of the frightening or upsetting nature of the case or simply because they are children.
Some of the measures, such as intermediaries and communication aids, are designed to help witnesses communicate with the court. Others are designed to reduce the stress of the court experience: screens, clearing the court, allowing the witness to give evidence through a live link, or admitting a video recording in place of the witness's main evidence. Courts will also be able to direct that witnesses should be cross-examined on video before the trial.
Mr. Douglas Hogg (Sleaford and North Hykeham):
There seem to be considerable difficulties in cross- examining on video before a case has got under way, if only because, until the case has got under way and has become fully deployed, it is frequently difficult to know what the key issues will be. If one is faced with difficulty in challenging a witness because the examination on video has already taken place, the case of the defendant might well be severely prejudiced.
Mr. Straw:
I understand the right hon. and learned Gentleman's exact point. His experience in court is much greater than mine, but I can think of many examples from the time when I practised when, with the best will in the world, it was impossible to predict the course of events until the drama, as it were, started. That is in the nature of the trial process. I found it salutary on a number of occasions when I thought either that I had an absolute winner or a stone-cold loser of a case to find that the reverse was the truth. The right hon. and learned Gentleman is correct to raise that concern.
My hon. Friend the Minister of State reminds me that it is to try to deal with that circumstance that we have provided for there to be secondary disclosure as well as primary disclosure before cross-examination on video in advance of trial. It is worth taking these powers. They will be used sparingly and in special situations. I repeat that we are ready to consider appropriate changes if the right hon. and learned Gentleman has particular suggestions to make. There is no suggestion that such cross-examination would become routine, but we seek to deal with some of the major problems that exist.
Some of the measures are already available for some witnesses. Child witnesses can already give evidence through video recordings and live links under the Criminal Justice Act 1988. The Bill makes the measures more widely available: courts will be able to award them to any witness who is eligible under the Bill. That includes complainants in rape and serious sexual offence trials, who will be presumed eligible unless the court is satisfied that they do not need help.
To return to a point raised earlier, the Bill also protects complainants in sexual offence cases from humiliating and irrelevant cross-examination designed to intimidate and undermine them.
Chapter II bans unrepresented defendants from personally cross-examining complainants in rape and sexual offence trials, and gives the court the power to impose bans on defendants' personally cross-examining witnesses in other cases where the witness needs protection. This is not a new idea and it is important to put that on the record. There has been a ban on defendants' personally cross-examining child witnesses in sexual and violent offence cases since the Criminal Justice Act 1991. There has been some suggestion that, if we extend that ban, it will somehow lead to miscarriages of justice. We know of no example of the use of the power in the 1991 Act leading to any allegation of a miscarriage of justice. Under this Bill, we propose to extend the ban to cover offences of kidnapping, child abduction and forced imprisonment.
We are going beyond the powers of the 1991 Act to make arrangements for defendants who do not want to appoint a lawyer to conduct the whole of their defence. They will be able to appoint a lawyer just to cross-examine, and conduct the rest of the case themselves. If they refuse to appoint their own lawyer, the court will be able to appoint a lawyer to test the evidence on their behalf. So witnesses' evidence will not go untested, and defendants' right to a fair trial will not be affected. However, I am clear that the ban will protect witnesses' right not to be mistreated in court.
Mr. Hogg:
I can conceive of many circumstances in which a defendant who has refused to appoint a lawyer and has had one appointed by the court to conduct the relevant cross-examination will decline to give instructions to that lawyer. In those circumstances, there would be no effective cross-examination because there could be no effective cross-examination.
Mr. Straw:
With great respect to the right hon. and learned Gentleman, we have thought of exactly that circumstance. We have anticipated that somebody may virtually refuse to recognise the court, or regard as a fundamental liberty the right to cross-examine in person and withdraw from any co-operation. I do not accept his conclusion that cross-examination would therefore be impossible, because the lawyer who is brought in, as it were on someone's behalf, to assist the court will have access to all the papers.
In many such cases, the line of defence will be pretty obvious. To be blunt, in a stranger rape case, the accused will be the wrong person, and in an acquaintance rape case, the woman will either have consented to the alleged
sexual intercourse or the alleged sexual intercourse will not have taken place. So I do not honestly think that there is a forensic difficulty. It will obviously be easier if the defendant gives instructions, but not doing so will not by any means render the arrangement impossible.
In putting before the House the reasons for this change, I have only to mention Ralston Edwards and Milton Brown. They were defendants in rape cases and used the opportunity of cross-examination to humiliate and intimidate the women whom they were alleged to have raped. That was completely unacceptable; we cannot have that. Of course, at the same time, we must ensure that the justice system is exactly that: just.
It is wrong for the trial process to be abused in such a way. Given the abuse of power and trust that a sexual offence trial involves, further intimidation in court must act as a very powerful deterrent to victims who are deciding whether to press charges. Unless we impose a total ban on personal cross-examination in rape and sexual offence cases, as we are proposing, we cannot rule out that possibility for complainants.
Fear of confrontation with the alleged rapist is only one reason why rape victims often do not press their cases through to trial. Another reason is the fear--it is a justifiable fear--that the trial will focus not on the alleged offence but on an examination of the complainant's past sexual behaviour and character. Indeed, in her research on the treatment of rape complainants in court, Sue Lees found that, in more than half of the cases with which she was concerned, the complainant was subject to unjustifiable examination of her sexual history.
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