House of Commons Hansard Debates for 15 Apr 1999 (pt 19)

Mr. Hogg: It is not so much that it is live which means that it is preferable, but that it takes place after the material issues have been clarified in the course of the trial then taking place.

Mr. Llwyd: The right hon. and learned Gentleman made that point earlier, and he is right. For cross- examination to take place before a case is embarked on in the court process is rather unusual and unworkable. I defer to the right hon. and learned Gentleman's greater experience in this area, and I agree with him.

Ms Beverley Hughes (Stretford and Urmston): Does the hon. Gentleman also accept that, in cases in which a victim has allegedly been subjected to a traumatic violation, whether a child or an adult, it can be of benefit in enhancing the quality of such evidence for it to be recorded as soon as possible after the event, and that that is a positive attribute of video recording in such cases?

Mr. Llwyd: I hear what the hon. Lady says, and that also happens in child cases in criminal courts; she makes a valid point, but I was referring to the cross-examination of witnesses. However, I take her point and readily accept what she says.

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It is important to note that one does not hear complaints about the way in which the system works in child cases, and they are often the most traumatic form of case, particularly when there has been sexual abuse and so on. The system seems to work fairly well. One does not hear of any complaints from witnesses, the courts or the defendants about the fairness of proceedings. I am sure that, in due course, those matters can be developed in constructive debates.

However, there is an area of concern. Nothing is more likely to test the veracity of any evidence than effective cross-examination. It is incumbent on all involved in any criminal process to bring out the truth and to ensure that justice is done. Therefore, to allow the cross-examination of a witness before a trial is completely different from anything that we have previously seen in the criminal process. Adequate and proper live cross-examination at the trial of a witness is highly necessary to bring out all the issues. I shall not labour that point; I have made it sufficiently.

The House of Commons research document states:

"Of the two possible benefits arising from introducing video pre-trial cross-examination, the working group considered that the main one was enabling the witness to give evidence away from the court room."

That can be done now, without the Bill, if the practice in respect of children giving evidence in a rape trial, or any other form of trial, is adopted. However, such matters can be debated more fully and minutely later.

With regard to complainants in proceedings relating to sexual offences, here again clause 33 could be in breach of article 6. I have no sympathy for any perpetrator of such offences, but surely the right to cross-examine a witness in person is vital to a defendant. We should not lose sight of the fact that, in England and Wales, a defendant is innocent until proven guilty.

The defendant should be entitled to conduct the defence in the manner in which he or she considers best with a minimum of interference. There may well be situations where, for example, the defendant is best placed to cross-examine, but I am not ignoring situations where clearly that can get out of hand--for example, where the complainant might have to relive in the cold light of day the horrible trauma of a sexual assault. I have every sympathy for anybody in that position and, as we know, there have been a few well-publicised cases of this nature. One can only imagine the torment of the complainant in those cases.

A balance needs to be struck. I question whether clause 33 is necessary. The matter was thoroughly examined by the Lord Chief Justice in the Court of Appeal in the case of Brown. In that case, the Lord Chief Justice endorsed the following criteria which he referred to from a previously reported case. He said:

"1 That the trial judge, without descending into the arena or acting on behalf of the defence, should ask such questions as he saw fit to test the reliability of prosecution witnesses;

2 That where appropriate the judge might ask the defendant whether there were matters he wished to be put to a witness, although it would be for the judge to decide whether and how such matters might be put;

3 That it was to be borne in mind that a heavy duty lay on the prosecution to be scrupulously fair as to how the case was presented so as to avoid any prejudice to the defendant;

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4 That in summing up it was desirable to direct the jury that it was always open to a defendant to act in person but that where he chose to do so they should bear in mind the difficulty of his doing so properly;

5 A sensible course was for the judge to explain some or all such matters to the jury at the outset of the trial to enable them to understand the course which the trial followed."

The Lord Chief Justice went on:

"The trial judge was obliged to have regard not only to the need to ensure a fair trial for the defendant but also to the reasonable interests of other parties to the court process, particularly witnesses, and among those witnesses who were obliged to re-live, by describing, an ordeal to which they said they had been subjected.

It was the trial judge's clear duty to do all he could, consistently with giving the defendant a fair trial, to minimise the trauma suffered by other participants.

A trial was not fair if a defendant, by choosing to represent himself, gained the advantage he would not otherwise have had of abusing the rules in relation to relevance and repetition which applied when witnesses were questioned.

Judges did not lack power to protect witnesses and control questioning. The trial judge was the master of proceedings in his court."

That was what the Lord Chief Justice said directly on this point in the Brown case.

Mr. Dawson: Does the hon. Gentleman seriously imagine that a rape victim would carefully weigh the words of the Lord Chief Justice before appearing in court as a witness? Is it not more likely that they would be terrified at the thought that the trial judge would not be able to keep proper control of the proceedings, and that they would be abused and go through the whole process again?

Mr. Llwyd: None of us would want that to happen and I am not underplaying the trauma that any such person would face. With respect, the hon. Gentleman cannot base his arguments on an inability of the judiciary to get up to speed on that. I am sure that judges are attuned to the need for this provision. I practise in the criminal courts and I have not found any who are wholly unattuned to the subject, even though that is a recent pronouncement. I question whether we need this. It is a debating point. I am not saying that I am right, but I am trying to contribute to the debate. I hear what the hon. Gentleman says and I know that there is considerable force in it.

The Lord Chief Justice has gone further than that. He spoke on this subject in the other place and said:

"I have never suggested in this House or anywhere that the provision is contrary to the European convention. The argument of the noble Lord, Lord Lester, is one that I readily accept"--

in other words, that there is a breach,

"But it is not so long since what gripped the popular press and rightly engaged the attention of your Lordships was the series of unjust convictions which were a blemish not simply on the criminal justice system but on our national life. This House must act at all costs to avert the risk of miscarriages of justice. It is for that reason that I, in company with the noble Baroness and the noble Lord, believe it to be urgently important that this provision shall not be brought into force unless and until it is clearly shown by practical experience to be needed."---[Official Report, House of Lords, 1 February 1999; Vol. 596, c. 1400-01.]

That opinion is supported by many legal practitioners on both sides in the other place.

Allied to those points is the apparent prohibition in clause 40 of cross-examination of a complainant about sexual behaviour. The 24-hour cut-off point appears to be

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somewhat artificial. It is true that, often, cases turn on this and it can be highly relevant, even decisive, if one considers that the majority of sexual offences involve complainants and defendants who are known to each other. Many will have a relationship that may extend over a considerable time. The clause needs to be amended.

I question whether it would be appropriate to amend the clause to provide for a prohibition unless the prohibition would prejudice a fair trial of the accused or not be in the interests of justice. Such an amendment has been suggested by Liberty. I will not repeat the words of Baroness Mallalieu in the other place, but she made a compelling argument which totally undermines the need for this clause. Again, that is a matter for further debate.

Two further matters that concern me are the youth justice provisions and inferences drawn from an accused's silence. As we know, the old system of cautions for youth has been abolished. Earlier, I listened to the thoughtful, interesting speech of the hon. Member for Lancaster and Wyre (Mr. Dawson) who, obviously, is an expert in this area. I accept what he says.

For some time, I practised in the juvenile courts. Often a youngster would be admonished while he chewed gum or laughed, knowing that nothing real could come of it in any event. Sometimes the young person concerned would have breached bail and perhaps broken into 12 or 15 cars the previous week even while on bail. Nothing could be done to redress the ever-descending spiral into criminality. The Bill provides a welcome step forward and it would be wrong of me to say otherwise.

There is now an attempt to tackle the root cause of the problem. It may be that the parents are not being supportive or that the young person is not being set any kind of example in life. Those and many other factors may be examined by the youth offending team under the regime suggested in the Bill. The provision is most welcome. Family group conferences in New Zealand and Australia, and Scottish children's hearings, about which we have heard at length today, contain useful tips on ways forward. I hope that that part of the Bill will come to fruition very shortly because there is nothing worse than seeing a young person on an inexorable slide into a wasteful and hopeless existence. I welcome the provision most sincerely.