David
Howarth: The idea of law lecturers making a lot of money
is rather amusing. David Thomas spent a year trying to teach me
criminal law with only limited success. He spent another year teaching
me criminology with more success,
however. I
am also having some difficulty in understanding clause 83. I am
grateful to the hon. and learned Gentleman for tabling some amendments,
in good faith, to clarify the intent. I shall say what I think the
intent is and ask the Government one
question. The
intent seems to go along with the definitive criticism of how the
provisions have worked until now. Bodies such as the National Society
for the Prevention of Cruelty to Children and Victim Support have said
that there should be some element of choice for the child witness and
that there ought to be a clearer connection between special measures
and the quality of the evidence. I hope that that is what is going on.
If so, it is a good thing and I agree with it, but it throws into
relief what is happening under clause 82, which seems to go in the
opposite direction. In clause 82, the Government seem to be going for
more automatic special measures, but in clause 83 they seem to be
responding to legitimate criticism of the automatic system and moving
towards a more flexible—perhaps better—system. There
seems to be a contradiction between clauses 82 and
83.
Bridget
Prentice: There is a large measure of agreement throughout
the Committee about the protection of child witnesses and about making
sure that they understand what is happening and are taken through that
in a proper fashion by the
court. In
response to the amendments tabled by the hon. and learned Member for
Harborough, there are reasons for clause 83 to be written as it
is—apart from proposed new section 4B(b), which he rightly said
makes plain English stand on its head. When special measures were
introduced in the Youth Justice and Criminal Evidence Act 1999, it was
thought that all children should be protected from giving evidence in
the courtroom. The present system is for all child witnesses to give
their evidence in chief by a video-recorded statement, if one is made,
with further questioning taking place via live
link. On
reflection, we feel that that is a rather rigid presumption that
disregards the wishes of the child witness. Those particular measures
have been in force for more than six years, and we have since had the
benefit of independent research, which has involved interviewing young
witnesses. The result was that many young witnesses wanted more choice
in how they gave their evidence. That was supported by a review of
child evidence that led to the public consultation in 2007. In that
consultation paper, we proposed that the legislation should be amended
to give young witnesses more flexibility, subject to suitable
safeguards. As the hon. Member for Cambridge has said, almost all those
who responded were in
favour. As
a result, clause 82 removes the rigid provisions and abolishes the
distinction between child witnesses in sex and violence cases and in
other cases, providing one rule for all. The provisions, however,
retain the existing presumption that the child witness will normally
give their evidence by video-recorded statement and/or live link, but
it allows the flexibility for them to opt out of that presumption, if
the court agrees. The aim is to make sure that accepting the opt-out
will not diminish the quality of the child’s evidence. If that
is agreed and a child will be giving evidence in a courtroom, there is
still a presumption that the child will give evidence from behind a
screen. Again, should the young witness not wish to use the screen,
they will be allowed to opt out, but that too is subject to the
agreement of the
court. Thus,
there will always be stopping points, at which the court will look
carefully at the young person’s wishes before it decides to
abandon the normal presumption. The court must take a number of
specified factors into account, including the age and maturity of the
witness, which might not always be at the same level. Sometimes, a
14-year-old is more mature than a 16-year-old and so on, and the court
will have to look at that in some
detail.
3.30
pm Amendment
208, tabled by the hon. and learned Gentleman, says that the court must
be
“satisfied that
the witness’s wish is based on informed consent or a real
understanding of its
consequences,”. I
agree with that. It is important that a young witness understands the
consequences of opting out in order to give evidence in a courtroom.
However, as he pointed out, we believe that that is covered under
subsection (6)
because the court must take into account the ability of the witness to
understand the consequences of the decision when considering the effect
of the request to opt
out. Amendment
209 amends subsection (6), so that rather than being required to take
the specified factors into account, the court has to “be
satisfied” about them. That would turn the considerations into a
more rigid set of conditions before the opt-out could be approved,
which would probably make it more difficult for approval to be
given.
I also
suggest that there are other, slightly less important, parts to that
provision that make it unworkable. For example, it is rather odd to
suggest that a court would need to be satisfied about a
witness’s age or ethnic origins, as that ought to be fairly
clear. The policy that we propose tries to meet the needs of the
individual child witness, rather than have a one-size-fits-all
approach. The court needs some flexibility in taking into account the
relevant factors within each case. On the whole, we should be able to
trust a court to exercise its discretion on a case-by-case basis. On
that basis, I am reluctant to accept the amendment.
I do not
really understand the need to add the sex of the witness to the list of
factors that the court must consider. I would be concerned if the court
were to make a decision based purely on that, and there is the
possibility that it might be regarded by some as discriminatory. If the
witness’s sex is relevant, the judge would already be entitled
to take that into account under subsection (6), because he or she can
take into account any other factors that they consider
relevant.
Mr.
Boswell: I suspect that some of the concerns expressed
relate to multiple factors. For example, within some groups of
particular ethnic populations there could be a concern about sex in
conjunction with their ethnicity, and there might be a strong cultural
presumption against giving evidence, or some fear of doing so. Is it
not important to ensure that all those factors are at least available
as part of the court’s
consideration?
Bridget
Prentice: The hon. Gentleman has almost answered that
question by talking about cultural considerations. A court should be
aware that the sex of a witness might have a bearing within those
cultural considerations. That should be taken into account in the
generality of the factors that the court should look
at. Amendments
409 and 410 reflect a different approach by the hon. and learned
Gentleman to the provisions. They remove the ability of the child
witness to opt out from both the primary rule—giving evidence by
live link and video recorded statement—and from the fall-back
presumption of giving evidence in a courtroom behind a screen. That
would defeat the purpose of the changes that we are making and it would
leave us with the current, rather inflexible, system. I understand the
principle behind the hon. and learned Gentleman’s
suggestion—he wants to ensure that young witnesses remain
adequately protected—but, as I said, we have consulted young
witnesses, and they do not want the measure. We are fairly confident
that the court will be able to supervise the opt-out arrangements and
will properly safeguard the interests of the young witness. The final
decision remains with the court, not the witness.
I should add
that before David Thomas has to go through proposed new section 4B(b),
we will have a look at it, if only to see whether putting in the odd
comma, full-stop, or other punctuation will make it a bit
clearer.
Finally,
amendment 411 would extend the presumption of evidence by video
statement and live links to all young defendants under 18. I agree that
young defendants need to be properly protected in the court, and that
they need to understand what is happening and why, but section 16 of
the Youth Justice and Criminal Evidence Act 1999, which the clause
amends, specifically excludes the defendant as a witness for the
purposes of special
measures. Special
measures were introduced to assist vulnerable or intimidated
prosecution and defence witnesses, aside from the defendant, to give
their evidence effectively and to reduce the stress of doing so. Young
defendants are in a different situation. A number of procedures are
already available to assist them. A judicial practice direction sets
out guidelines for the courts on the treatment of vulnerable
defendants, including the young, so that they understand and so that
they can participate properly in their trial. Provisions in the Police
and Justice Act 2006 make live links available to vulnerable
defendants who require assistance when giving evidence. Also, as we
will discuss when we come to clause 87, intermediaries will be
available to assist vulnerable defendants giving
evidence. I
hope, on that basis, that the hon. and learned Gentleman will feel able
to withdraw the amendment.
Mr.
Garnier: It is probably unfair to keep bringing David
Thomas into these discussions. He has now retired from giving lectures
at the Judicial Studies Board, and I think John Spencer and Nicola
Padfield are the current victims who have to go through the piles of
Government legislation that spew out from the Home Office and Ministry
of Justice. I am sure that whichever of them is at the next JSB meeting
that I will attend in April will be utterly delighted to learn what the
Minister said about proposed new section 4B(b). Actually, they might
not, because she might deny them an opportunity to poke fun at the
Government—perhaps I can do it for them. If the Government can
come up with something better and less unintelligible, we will have
achieved something.
I accept that
it is not necessary for the court to have proved that the factors in
subsection (6) are established to a high standard. However, merely
“taking into account” is a bit vague, especially in
relation to paragraph (b), which
states “the
ability of the witness to understand the consequences before giving
evidence otherwise than in accordance with the
requirements”. Magistrates
and judges will take their duties under the new provisions seriously,
and they will not just do so on a whim or take a rush at it. They will
want to be persuaded by evidence of one sort or another, either
informally or formally, that the child in question knows what they are
about, so I will not be so untoward as to press the amendment to a
Division—heaven forfend. However, when we construct legislation,
we should not rush in as the Government have. I ask them to please stop
this constant avalanche of legislation that needs to be amended by them
during our deliberations. I have no doubt that on Report, we will see a
raft of Government amendments. Moreover, as the Bill progresses through
the other place, I am sure that there will be yet more Government
amendments. That undermines the confidence that I have, let alone the
public, in the Government’s ability to construct legislation.
None the less, I am grateful to the Minister for what she has said, and
beg leave to withdraw my
amendment. Amendment,
by leave,
withdrawn. Clause
83 ordered to stand part of the
Bill.
Clause
84Special
provisions relating to sexual
offences
Mr.
Garnier: I beg to move amendment 211, in
clause 84, page 48, leave out line
44. The
amendment seeks to delete subsection (2) , which
states: “This
section does not apply if the place of trial is a magistrates’
court.” We
are dealing with special provisions relating to sexual offences. My
simple question about subsection (2) is, why
not?
Bridget
Prentice: The amendment would extend to the magistrates
court automatic admissibility of video recorded statements as evidence
in chief for the complainants of sex offences. I know that the hon. and
learned Gentleman recognises the need for special measures for
complainants of rape and other sexual offences because of the trauma
involved. It
is right to focus on the serious sex offence cases by giving early
certainty to complainants in offences such as rape about the way in
which they are likely to give their evidence in court. Those offences
are tried in the Crown court, and, on that basis, we have limited the
presumption of admissibility to that court. That does not mean that
video-recorded statements are not admissible in magistrates court. The
legislation simply establishes that the presumption of admissibility is
not
applicable. We
have already introduced automatic eligibility for complainants in sex
offence cases for special measures unless they wish to opt out. At
present, such video-recorded statements are admissible if the court
decides that their use will maximise the quality of the
complainant’s evidence. That will remain the position for
magistrates courts. I hope that that gives the hon. and learned
Gentleman some explanation as to why we have not extended the
provisions to magistrates
courts.
Mr.
Garnier: I heard what the Minister had to say. While she
was reading her speech, I was quickly looking through section 22 of the
Youth Justice and Criminal Evidence Act 1999. I want to see how
proposed new section 22A would fit into section 22 and I am not sure
whether the Minister has assisted me very much. It may be that I have
not been listening properly. I do not see the point of having a
circular argument about it now, but someone needs to have a think about
it, and that may be me in due course. For the moment, I beg to ask
leave to withdraw the
amendment. Amendment,
by leave,
withdrawn. Clause
84 ordered to stand part of the
Bill.
3.45
pm
Clause
85Evidence
by live link: presence of
supporter
Mr.
Garnier: I beg to move amendment 212, in
clause 85, page 49, line 44, at
end insert— ‘(1C)
Particulars of the specified person’s name, age, sex,
qualifications and relationship, if any, to the witness must be
provided to the court and to all other parties to the proceedings by
the party calling the
witness.’. The
clause deals with the presence of a supporter while a vulnerable
witness gives evidence by a live link. What we seek to do is to require
that particulars of the specified person’s name, age, sex,
qualifications and relationship, if any, to the witness must be
provided to the court and to all other parties to the proceedings by
the party calling the
witness. I
anticipate that the Government will say, “Don’t worry,
this is all dealt with by the rules committee and we do not need to
have this in the Bill”. However, it is important that, before we
add yet more things to section 24 of the Youth Justice and
Criminal Evidence Act 1999, we work out in our own minds
what we intend by this clause. Who are the people who are likely to be
supporters and what precisely will their role be? Are they there simply
to be passive hand-holders or are they more akin to social workers, who
have literally a more supportive role to ensure that the witness can
give the best of him or herself while giving evidence over the video
link?
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