Youth Justice and Criminal Evidence Bill [Lords]

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Mr. George Howarth: If I were to go too far along that road--

The Chairman: Order. I will allow the Minister to respond, but I do not want him to stray on to a discussion of the Financial Services and Markets Bill.

Mr. Howarth: I am grateful for your guidance, Mr. Stevenson. I noticed from the Annunciator screen that the hon. Member for Ryedale spoke in the debate last night, and I was impressed by the peripatetic nature of his interests and skills. He will be aware that the cover of the Bill contains a declaration from my right hon. Friend the Home Secretary which states that, in his view, all the provisions of this Bill are compatible with the convention rights. The cover of the Financial Services and Markets Bill will contain a similar declaration from my right hon. Friend the Chancellor of the Exchequer. However, I assure the hon. Gentleman that there will be dialogue between the Home Office and the Treasury to ensure that his concerns are adequately covered.

Amendment agreed to.

Amendments made: No. 87, in page 61, line 41, after `section' insert `1,'.

No. 88, in page 61, line 42, leave out

    `otherwise than in judicial proceedings'.

No. 89, in page 62, line 18, at end insert--

    `( ) an offence which is--

    (i) created by regulations made under any such rules, and

    (ii) designated for the purposes of this subsection by such regulations;'.

No. 90 in page 66, line 31, after `regulations;' insert--

    `( ) an offence which is--

    (i) created by regulations made under any such rules, and

    (ii) designated for the purposes of this paragraph by such regulations;

No. 91, in page 67, line 8, after `regulations;' insert--

    `( ) an offence which is--

    (i) created by regulations made under any such rules, and

    (ii) designated for the purposes of this paragraph by such regulations;'.

No. 92, in page 67, line 9, after `Article' insert `3,'.

No. 93, in Schedule 3, page 67, line 10, leave out

    `otherwise than in judicial proceedings'.--[Mr. George Howarth.]

Schedule 3, as amended, ordered to stand part of the Bill.

Clauses 59 to 61 ordered to stand part of the Bill.

New Clause 2

Removal of restriction on use of evidence from computer records

    `. Section 69 of the Police and Criminal Evidence Act 1984 (evidence from computer records inadmissible unless conditions relating to proper use and operation of computer shown to be satisfied) shall cease to have effect.'.--[Mr. Boateng.]

Brought up, and read the First time.

Mr. Boateng: I beg to move, That the clause be read a Second time.

The Chairman: With this we may discuss Government amendments Nos. 29 to 39.

Mr. Boateng: This group of amendments implements a Law Commission recommendation that section 69 of the Police and Criminal Evidence Act 1984 should be repealed. New clause 2 will repeal that provision; Government amendments Nos. 29 to 39 are consequential amendments, relating to that repeal.

Section 69 of PACE provides that a document produced by a computer may not be adduced as evidence unless it is shown that the computer was operating properly and was not used improperly. The provision was based on the recommendations in the 1972 Criminal Law Revision Committee report and was intended to clarify the law on the admissibility of computer evidence in response to the growing importance and use of computers. Of course, comparing computer technology in 1972 with that of today is a bit like comparing the spinning jenny with a modern high-powered loom. [Interruption.]

Although sorely tempted, I shall not respond to sedentary mutterings. However, I am stung by the reference to spin-doctoring made by the hon. Member for Meirionnydd Nant Conwy (Mr Llwyd).

Technology has moved on, which is why we need new clause 2. The rapid advances in computer technology have made section 69 of PACE an increasingly difficult hurdle for the prosecution and defence to overcome. before computer evidence can be used, the party seeking to adduce it must prove that the computer was reliable at the material time.

Computer developments have made it increasingly impractical to examine all the intricacies of computer operation and certify that they comply with the requirement. Indeed, most Committee members know from domestic experience that one's eight-year-old child is the only person on whom one can absolutely rely to tell one how one's computer works. The younger one's children, the better they are at that.

We have been taking steps to keep eight-year-olds out of court. [Laughter.]

Mr. Greenway: What laws would be contravened if the Under-Secretary of State for the Home Department, the hon. Member for North Warwickshire (Mr. O'Brien), employed eight-year-olds to work in the passport office.

Mr. Boateng: We try to extend the hand of friendship, and what do we get? That'll learn me.

Greater use of modern technology places a growing burden on business to supply section 69 certificates for criminal trials and provide members of staff to give evidence in court. For example, everyday till receipts showing the purchase of goods have required certificates under section 69.

That is a complete waste of time for the court, the prosecution and defence. In the case of evidence from the defendant's computer, it is plainly impossible for the prosecution to provide an operator's certificate that the computer was working correctly. Frankly, it is absurd that such evidence should be excluded as the result of the unavailability of a section 69 certificate.

Of course, those problems apply equally in relation to the defence. A defendant could be prevented from using computer evidence that might exculpate him, merely because he could not prove that the computer was reliable. That would be grossly unfair. The Law Commission therefore concluded that present law was unsatisfactory and recommended that the section be repealed without replacement--a view supported by the vast majority of respondents to the Law Commission's consultation on hearsay. In Scotland, New Zealand, the United States and Canada there is no separate scheme for computer evidence and no problems appear to have arisen.

The effect of repeal will be that common law will apply and, in the absence of evidence to the contrary, the courts will presume that computer systems are in order. If there is evidence that a computer may not have been working correctly, the party seeking to adduce the evidence will still need to prove the point. That is how the law currently deals with evidence from mechanical sources--for example, traffic lights and speedometers--and it works perfectly well. The Government believe that the repeal will redress the balance and enable the courts to take proper account of the increasing value of computer-related evidence. I therefore support the new clause.

Question put and agreed to.

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

New Clause 3

Special provisions relating to child witnesses

    `.--(1) For the purposes of this section--

    (a) a witness in criminal proceedings is a ``child witness'' if he is an eligible witness by reason of section 16(1)(a) (whether or not he is an eligible witness by reason of any other provision of section 16 or 17);

    (b) a child witness is ``in need of special protection'' if the offence (or any of the offences) to which the proceedings relate is--

    (i) an offence falling within section 34(3)(a) (sexual offences etc.), or

    (ii) an offence falling within section 34(3)(b), (c) or (d) (kidnapping, assaults etc.); and

    (c) a ``relevant recording'', in relation to a child witness, is a video recording of an interview of the witness made with a view to its admission as evidence in chief of the witness.

    (2) Where the court, in making a determination for the purposes of section 19(2), determines that a witness in criminal proceedings is a child witness, the court must--

    (a) first have regard to subsections (3) to (7) below; and

    (b) then have regard to section 19(2);

    and for the purposes of section 19(2), as it then applies to the witness, any special measures required to be applied in relation to him by virtue of this section shall be treated as if they were measures determined by the court, pursuant to section 19(2)(a) and (b)(i), to be ones that (whether on their own or with any other special measures) would be likely to maximise, so far as practicable, the quality of his evidence.

    (3) The primary rule in the case of a child witness is that the court must give a special measures direction in relation to the witness which complies with the following requirements--

    (a) it must provide for any relevant recording to be admitted under section 26 (video recorded evidence in chief); and

    (b) it must provide for any evidence given by the witness in the proceedings which is not given by means of a video recording (whether in chief or otherwise) to be given by means of a live link in accordance with section 23.

    (4) The primary rule is subject to the following limitations--

    (a) the requirement contained in subsection (3)(a) or (b) has effect subject to the availability (within the meaning of section 18(2)) of the special measure in question in relation to the witness;

    (b) the requirement contained in subsection (3)(a) also has effect subject to section 26(2); and

    (c) the rule does not apply to the extent that the court is satisfied that compliance with it would not be likely to maximise the quality of the witness's evidence so far as practicable (whether because the application to that evidence of one or more other special measures available in relation to the witness would have that result or for any other reason).

    (5) However, subsection (4)(c) does not apply in relation to a child witness in need of special protection.

    (6) Where a child witness is in need of special protection by virtue of subsection (1)(b)(i), any special measures direction given by the court which complies with the requirement contained in subsection (3)(a) must in addition provide for the special measure available under section 27 (video recorded cross-examination or re-examination) to apply in relation to the witness.

    (7) The requirement contained in subsection (6) has effect subject to the following limitations--

    (a) it has effect subject to the availability (within the meaning of section 18(2)) of that special measure in relation to the witness; and

    (b) it does not apply if the witness has informed the court that he does not want that special measure to apply in relation to him.

    (8) Where a special measures direction is given in relation to a child witness who is an eligible witness by reason only of section 16(1)(a), then--

    (a) subject to subsection (9) below, and

    (b) except where the witness has already begun to give evidence in the proceedings,

    the direction shall cease to have effect at the time when the witness attains the age of l7.

    (9) Where a special measures direction is given in relation to a child witness who is an eligible witness by reason only of section 16(1)(a) and--

    (a) the direction provides--

    (i) for any relevant recording to be admitted under section 26 as evidence in chief of the witness, or

    (ii) for the special measure available under section 27 to apply in relation to the witness, and

    (b) if it provides for that special measure to so apply, the witness is still under the age of 17 when the video recording is made for the purposes of section 27,

    then, so far as it provides as mentioned in paragraph (a)(i) or (ii) above, the direction shall continue to have effect in accordance with section 20(1) even though the witness subsequently attains that age.'.--[Mr. Boateng.]

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

New Clause 4

Extension of provisions of section

(Special provisions relating to child witnesses) to certain witnesses over 17

    `.--(1) For the purposes of this section--

    (a) a witness in criminal proceedings (other than the accused) is a ``qualifying witness'' if he--

    (i) is not an eligible witness at the time of the hearing (as defined by section 16(3)), but

    (ii) was under the age of 17 when a relevant recording was made;

    (b) a qualifying witness is ``in need of special protection'' if the offence (or any of the offences) to which the proceedings relate is--

    (i) an offence falling within section 34(3)(a) (sexual offences etc.), or

    (ii) an offence falling within section 34(3)(b), (c) or (d) (kidnapping assaults etc.); and

    (c) a ``relevant recording'', in relation to a qualifying witness, is a video recording of an interview of the witness made with a view to its admission as evidence in chief of the witness.

    (2) Subsections (2) to (7) of section (Special provisions relating to child witnesses) shall apply as follows in relation to a qualifying witness--

    (a) subsections (2) to (4), so far as relating to the giving of a direction complying with the requirement contained in subsection (3)(a), shall apply to a qualifying witness in respect of the relevant recording as they apply to a child witness (within the meaning of that section);

    (b) subsection (5), so far as relating to the giving of such a direction, shall apply to a qualifying witness in need of special protection as it applies to a child witness in need of special protection (within the meaning of that section); and

    (c) subsections (6) and (7) shall apply to a qualifying witness in need of special protection by virtue of subsection (1)(b)(i) above as they apply to such a child witness as is mentioned in subsection (6).'.--[Mr. Boateng.]

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

Clause 62

Regulations and orders

Amendment made: No. 79, in page 45, line 39, leave out `or 41(2)' and insert `, 41(2) or 43(4A)'.--[Mr. Boateng.]

Clause 62, as amended, ordered to stand part of the Bill.

Clauses 63 to 65 ordered to stand part of the Bill.

Schedule 4

MINOR AND Consequential AMENDMENTS

Amendment made: No. 29, in page 71, line 27, leave out

    `In section 34(3) of the Criminal Justice Act 1988'

and insert--

    `The Criminal Justice Act 1988 has effect subject to the following amendments.

    15A. In subsection (1) of each of sections 23 and 24 (first-hand hearsay; business etc. documents), at the end of paragraph (a) insert ``and''.

    15B. In section 34(3)'.--[Mr. Boateng.]

 
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