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(4B) For the purposes of this subsection, 'cohabitant', 'relevant child' and 'associated persons' mean a person as defined by section 62 of the Family Law Act 1996 (c.27) (meaning of 'cohabitants', 'relevant child' and 'associated person') as amended by sections 2 and 3 of this Act.".'.—[Mr. Heath.]

 
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Brought up, and read the First time.

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

Mr. Deputy Speaker: With this it will be convenient to discuss the following: New clause 8—Photography of witnesses, etc, in court—

'(1) No person shall—

(a) take, or attempt to take, a photograph in a specified court of any person being a juror, witness in or party to any proceedings before the court, or

(b) photograph, or attempt to photograph, any person in any court if the presiding judge has determined that it would not be in the interests of justice for any photograph to be taken; or

(c) publish, transmit or broadcast any photograph taken in contravention of the foregoing provisions of this section.

(2) Any person acting in contravention of this section shall, on summary conviction, be liable in respect of each offence to a fine not exceeding level 3 on the standard scale.

(3) For the purposes of this section—

(a) "specified court" means any magistrates' court, any other court in which criminal proceedings take place, or any other court which the Lord Chancellor may by order prescribe;

(b) "judge" includes a lay judge, district judge, recorder, judge, registrar or coroner;

(c) "photograph" includes any image whether still or moving made by any means whether photographic, electronic or otherwise;

(d) a photograph shall be deemed to be a photograph taken in court if the subject of the photograph is in the courtroom or in the building or in the precincts of the building in which the court is held at the time that the photograph is taken.'.

New clause 9—Amendment to the Youth Justice and Criminal Evidence Act 1999 to extend the category of witnesses eligible for assistance on grounds of fear or distress about testifying—

'(1) Section 17 of the Youth Justice and Criminal Evidence Act 1999 is amended as follows.

(2) After subsection (1) insert—

"(1B) For the purpose of this chapter an applicant in civil proceedings relating to domestic violence is eligible for assistance by virtue of this subsection if the Court is satisfied that the quality of evidence given by the applicant is likely to be diminished by reason of fear or distress on the part of the applicant in connection with testifying in the proceedings.".'.

Amendment No. 20, in schedule 11, page 86, line 7, at end insert—

'Criminal Justice Act 1925 (c.86)	Section 41'.

Mr. Heath: New clause 3 returns us to a matter that we discussed briefly in Committee, but I fear that the Government did not entirely satisfy me that the present arrangements are satisfactory. The new clause deals with the special arrangements that can be made for witnesses who are considered vulnerable or intimidated, such as giving evidence from behind screens or by TV links, which give those people some sense of security in giving their evidence before the courts and have often proved critical elements in determining whether they give evidence at all.
 
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The difficulty is that there is no automaticity in the arrangements, although they are becoming increasingly available. I give credit for that fact. Nevertheless, instead of those who make the original complaint being told, "Don't worry. You will not have to face your abuser in court because we will ensure that special arrangement are made", the best that they can be told is that an application will be made for such arrangements. That will depend on the Crown Prosecution Service making the application, but the CPS does not necessarily act in the interests of the complainant or witness; it is acts in the state's interests in bringing a prosecution. There is a subtle difference between the two. The proposal in new clause 3 is simply that such automaticity should be put in place. Of course, if those arrangements are unnecessary, they will not be provided, but there should be certainty that the witness will receive that protection if it is necessary and on the request of the witness in those circumstances.

At first sight, new clause 9 is similar, but it deals with complainants in domestic violence cases who make application through civil proceedings. Of course, under the Bill, we are widening the scope for civil proceedings, but it is curious that section 17 of the Youth Justice and Criminal Evidence Act 1999 deals with a complainant in criminal proceedings but not with a complainant in civil proceedings. The person will come face to face with the same abusive partner or relative and have the same sense of distress, disquiet or intimidation. The measures under consideration in a civil court will be no less serious than those in the criminal court. It does not seem entirely logical that, in one case, special measures provisions are in place but not in the other. I ask the Minister seriously to consider whether new clause 9 would be a sensible extension of the present arrangements.

New clause 8 and amendment No. 20 deal with a quite different matter. Some would argue that it is tangential to the purpose of the Bill—I freely accept that it is—but this is an opportunity for the House to consider for the first time a issue that was raised, to many people's astonishment, during the summer when the House was not sitting: filming or photography in court.

Without any great prior notice to anyone, the Lord Chancellor announced that he was running an experiment for the filming of proceedings in the Court of Appeal and that he would make further proposals at a later stage. Many hon. Members were alarmed that that was done without a proper announcement in the House. Many of us were alarmed at the possible implications, and many of us felt that benefit would be derived from at least a debate on the circumstances. None of that happened, and it is not unreasonable to say that that is not uncommon in the case of either this Lord Chancellor or his predecessor, sadly.

I have corresponded since then with the Under-Secretary of State for Constitutional Affairs, the hon. Member for Shipley (Mr. Leslie), who is in his place, and his letter to me was extremely helpful in allaying some of my concerns. He said that it was not the intention under any circumstances to allow the broadcast of the filming that was to take place in the Court of Appeal and that the filming would only ever take place there. He said that he shared some of my concerns, which I shall explore in a little more depth in a moment, about the wider implications of filming in court. He also said that the Lord Chancellor intended to publish an exploratory
 
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paper, which would not include specific proposals but invite comment on the issue, and that they would carefully consider the arguments before taking any precipitate action. All that I applaud. I shall deal with my views on the subject in a moment.

I was worried by one thing in the letter that I received from the Under-Secretary. During parliamentary questions on Tuesday 7 September, I questioned him specifically about the legal advice that underpinned the decision to allow filming in the Court of Appeal at all. I referred to section 41 of the Criminal Justice Act 1925, which, as hon. Members will recall, expressly prohibits the taking of any photograph or film not only in the court, but in its precincts. The part of the letter that gave me some cause for concern said:

"We have been advised that section 41 of the Criminal Justice Act 1925, to which you referred, does not bind the Crown."

What on earth are we doing making statutes about the arrangements for courts if they do not bind the courts in any way, even in the simplest terms, about that which is an expressed prohibition. That seems to be nonsense. I question that interpretation, although I accept that almost certainly someone will show that Crown immunity takes precedence over anything that the House chooses to do, but I regret that; it is extraordinary in the circumstances.

Let us be clear about what the 1925 Act does. It expressly prohibits the taking of any photograph or the making of any image of people who are in the court or its precincts. However, we are told that, if one happens to be the Lord Chancellor, one can give permission for that to take place. That is wrong, and it invites all sorts of questions. Why do I think that it is specifically wrong in the case of photography in court? First, there is a very real risk that potential witnesses, victims or jurors will not come forward to appear in court if they believe that they will be photographed or filmed doing so. Secondly, court proceedings are not an entertainment. I have seen in other jurisdictions that allow filming in court a trivialisation of court proceedings, which is wholly detrimental to the process of justice.

I understand the arguments made on the other side of the coin that, somehow, filming in court will increase the understanding of court procedures, but I do not think that it would. What appears on the television screen in those jurisdictions that allow the filming of criminal proceedings is not the laborious work of cross-examination and finding facts, but the point at which the victim breaks down or the defendant says, "Gaw, luvvie, I did it." That is the entertainment value of court television; that is what appears on the news broadcasts, but that does not nothing to increase the awareness of how the judicial process works—rather it does the reverse: it suggests that such things are the matters of a moment and that they are dramatic in content, which, I am afraid to say, careful court work is not.

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