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Mr. Garnier: I will leave the Minister and the hon. Member for Cambridge to have a discussion about the difference between an “accused” and a “defendant”, which I am sure will be interesting.
I join the hon. Gentleman, however, in teasing out from the Government their understanding of the provisions dealing with those suffering from a mental disorder. The reason for amendments 216 and 256—amendment 256 deals with clause 107, but the point is the same—is that clause 87(6)(a) mentions
“a mental disorder (within the meaning of the Mental Health Act 1983)”.
However, section 1 of the Mental Health Act 2007, whose title is “Removal of categories of mental disorder”, reads as follows:
(1) Section 1(2) of the 1983 Act...is amended as set out in subsections (2) and (3).
(2) For the definitions of “mental disorder” and “mentally disordered” substitute—
“mental disorder” means any disorder or disability of the mind;
and
“mentally disordered” shall be construed accordingly;”.
(3) The following definitions are omitted—
(a) those of “severe mental impairment” and “severely mentally impaired”,
(b) those of “mental impairment” and “mentally impaired”, and
(c) that of “psychopathic disorder”.
(4) Schedule 1 (which contains further amendments to the 1983 Act and amendments to other Acts) has effect.
Section 2 of the 2007 Act goes on to deal with learning disabilities. Subsection (2) inserts into the 1983 Act the following subsection (2A):
“But a person with learning disability shall not be considered by reason of that disability to be—
(a) suffering from mental disorder for the purposes of the provisions mentioned in subsection (2B) below; or
(b) requiring treatment in hospital for mental disorder for the purposes of sections 17E and 50 to 53 below,
unless that disability is associated with abnormally aggressive or seriously irresponsible conduct on his part.”
It then lists a host of other provisions, which are affected by these amendments, in the 2007 Act. I am sure that there is a good explanation why clause 87 mentions only the Mental Health Act 1983, and I ask the Government to provide that explanation. If I have misled myself regarding the 2007 Act, I hope that the Minister is able to tell me why.
10.45 am
Bridget Prentice: I will deal with amendments 464 to 484 first, and then move on to the more detailed amendments. Regarding the proposed substitution of the term “accused” for “defendant”, first, there is no legal difference between the two. When I first looked at the amendments, I had every sympathy for them; in fact, I was tempted to accept them. But, unfortunately, I must ask the hon. Member for Cambridge to withdraw his amendment. The clause inserts a new section into the Youth Justice and Criminal Evidence Act 1999, and we have used the language of that Act to achieve consistency. If I accepted the amendments—much as I would like to modernise the language, as the Under-Secretary of State for Justice, my hon. Friend the Member for Liverpool, Garston rightly advocates that we do—we would end up, in the 1999 Act, with the word “accused” in some parts and “defendant” in others; that would just sow seeds of confusion all round. For that reason alone, I am unable to accept those amendments on this occasion.
On the use of an intermediary by vulnerable defendants if and when they are giving oral evidence, it is important to explain that the intermediary is there to assist with communication when a person is being questioned as a witness. The clause is modelled on the vulnerable witnesses intermediary provision in section 29 of the 1999 Act, which was rolled out nationally last year after a successful pathfinder phase. The intermediary eligibility criteria for vulnerable adult defendants refer, as the hon. and learned Member for Harborough said, to the Mental Health Act 2007. Amendment 216 would add a reference to the 2007 Act, but that is superfluous, as the 2007 Act amends the 1983 Act, so the clause correctly refers to the 1983 Act alone. The same principle applies to amendment 256, which would make a similar change to clause 107, which concerns sentencing provisions.
Amendment 448 would create a precondition that the court must determine that a defendant is fit to plead, before giving a direction for him or her to be assisted by an intermediary. But clause 87 provides that vulnerable defendants are eligible for intermediary assistance if their
“ability to participate effectively in the proceedings as a witness giving oral evidence in court is compromised by the accused’s level of intellectual ability or social functioning”,
and they are under 18. As the hon. Member for Cambridge said, if the defendant was over 18, the test would be that the defendant must be suffering from a mental disorder or
“a significant impairment of intelligence and social function”,
and that the use of the intermediary was necessary to ensure that they would receive a fair trial.
To require defendants to be found fit to plead before they can be granted an intermediary confuses two separate issues. The test for fitness to plead is a different and more stringent common law test, regarding a defendant’s capacity to understand the course of proceedings and to make a proper defence. It is a matter for the defence or the prosecution to claim unfitness to plead. The judge will not determine that except on the basis of evidence from medical practitioners, at least one of whom must have specialist experience in the diagnosis or treatment of mental disorder. That is an entirely separate procedure from the issue of whether to apply for an intermediary application, which will be relevant only if the contested trial is allowed to proceed, and the defendant intends to give evidence.
David Howarth: I accept that point. The question then arises of whether fitness to plead determinations are intended to be taken before intermediary order determinations or after. If they are taken after, the intermediary order could be taken into account in fitness to plead, but if the other way around, not. The drafting of the Bill is not clear on what process—the order of decision making—is intended. That will need to be sorted out at some stage, because it will arise.
Bridget Prentice: It is important to make the order in which such things would happen clear. My understanding is that the fitness to plead ought to be taken first; if the person was found not fit to plead, no trial would take place. With specialist medical practitioners, presumably their evidence might address whether, if the trial were to go ahead, that particular defendant would need to make the application for intermediary help. That would be the logical and sensible order, but I shall ensure that that is clarified.
It would be wrong to restrict the ability of the defence to apply for an intermediary for a defendant by making it a condition that fitness to plead must be determined first. It would not necessarily always be the case that fitness to plead would have to be determined in a particular defendant’s case. For example—the hon. Member for Cambridge asked for examples—someone at the lower end of the autism spectrum might need the help of an intermediary, but would not be likely to have to ask for a fitness to plead decision to be made. Someone might have difficulty with long concentration spans and might need to be given the opportunity to have breaks in the course of questioning—again, that is not a fitness to plead issue, but it concerns their ability to communicate during the trial.
Under amendment 485, the hon. Gentleman raised the issue of making an adult defendant’s eligibility for an intermediary closer to that for someone under 18. As he said, the effect would be that eligible adults must have a significant impairment of intelligence or social functioning rather than both. The reason for having both is the same as that in section 33A of the Youth Justice and Criminal Evidence Act 1999, which is the provision that made the use of live links available for eligible, vulnerable defendants to give evidence in court, when that use was previously available only for eligible witnesses. The distinction between the eligibility criteria applied to adults as compared with children reflects the fact that it is not uncommon for juvenile defendants to require assistance giving oral evidence and communication generally, regardless of their mental capacity. There should, however, be a strong presumption that adult defendants are able to give oral evidence in court. That is why the more stringent test is required by the court before it would approve the use of a live link for adult defendants.
In the light of those explanations, I hope that the hon. Gentleman will withdraw his amendment.
David Howarth: I am grateful for the explanation about “accused” rather than “defendant”, although it means that we have long chains back. The amendments to the Act were only passed in 1999, in which year “defendant” was the current phrase, so presumably the old-fashioned language was used because the amendments were to some other Act, and back it goes. We shall end up using “prisoner” on that basis, if we do not watch out.
On fitness to plead, I am glad for the explanation, but as I said in my intervention it raises the issue of the order in which things happen. The Bill might have to be altered to clarify that.
On the final issue—adults as against under-18s in eligibility for the order—I took the Minister’s point about not having the same presumptions for young people as for older people. She answered that question, but not the other points about the differences between the two eligibility criteria. Will she further consider those matters as well as the ones raised directly by the amendment? With that, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Mr. Garnier: I beg to move amendment 217, in clause 87, page 51, leave out lines 14 to 27.
The amendment stands in my name and those of my hon. Friends. It looks to be a drastic measure as it seeks to delete the whole of subsection (7), but it is tabled not in any spirit of aggression, but because I want to find out what the Government mean.
I might have entirely misread it, but I am not sure that the syntax allows the subsection to be understood properly. I will read it out, and perhaps in doing so I will provide an answer to my own question:
“Where a live link direction under section 33A has effect in relation to the accused, any examination of the accused in pursuance of a direction under subsection (3) must take place in the presence of such persons as Criminal Procedure Rules or the direction under subsection (3) may provide, but in circumstances in which—”
and it sets out three sets of circumstances. It continues:
“For the purposes of this subsection any impairment of eyesight or hearing is to be disregarded.”
I can probably guess at what it tries to do, but I am not sure how it works. When the subsection mentions “circumstances in which” certain things apply or happen, one would expect something to follow. However, nothing follows but a full stop. I wonder whether there are words missing after “accused” in line 25, or whether I have failed to spot a verb within the preceding passage, or whether, instead of a full stop after “accused”, there should be a comma or semi-colon, line 26 should start with “for” rather than “For”, and something else should follow. It is as simple as that. I might have utterly misread it, but if this is to become part of the criminal law of England, we should know what it means.
Bridget Prentice: I hope that I can clarify this point for the hon. and learned Gentleman. It was helpful of him to read out subsection (7) as it began to fit into place more coherently. It states that where a live link direction is given and an intermediary is appointed, for such a person to be there the following three things, as listed in paragraphs (a) (b) and (c), must happen. The judge must be able to
“see and hear the examination of the accused and to communicate with the intermediary,”
the jury should be able to
“see and hear the examination of the accused,”
as should
“any other person charged in the same proceedings as the accused”.
Where a live link takes place, all those people must be able to see and hear what is going on. That is the explanation for subsection (7). I agree that it is worded in a convoluted fashion. Does that make it clearer to the hon. and learned Gentleman?
Mr. Garnier: I regret to say that it does not. This is not something that we should spend too much time on. It is a question of taking it away, producing a formal redraft and presenting it again on Report without the need for debate.
Let me try this again as I am genuinely confused. I understand what the Minister says, but that does not reflect what is in the subsection.
11 am
I am going to try your patience, Mr. Cook, I am sorry, but it is important to sort out this point, if Committee is to have any purpose. I understand:
“Where a live link direction under section 33A has effect in relation to the accused, any examination of”
that person
“must take place in the presence of such persons as Criminal Procedure Rules or the direction under subsection (3) may provide”.
That is easy. However,
“but in circumstances in which”,
takes us into another arena. The changes in circumstances are described as those where
“the judge or justices...and legal representatives acting in the proceedings are able to see and hear the examination of the accused and to communicate with the intermediary”.
What should happen in circumstances that are different from those in the preamble of subsection (7) but that fit into paragraph (a)? What should happen in circumstances in which the jury can see the examination of the accused? What should happen in circumstances in which any other person charged in the same proceedings as the accused can see and hear the examination of the accused? Answers to those questions should be found in the subsection. Paragraphs (a), (b) and (c) are implied interrogatories, and there should be answers after paragraph (c), but there are none. There is a full stop, so we are left hanging there, wondering what the next exciting episode of the story is. All we are told is:
“For the purposes of this subsection any impairment of eyesight or hearing is to be disregarded”,
which is an entirely worthy thing to put in the Bill, but not an answer to the questions left hanging by
“but in circumstances in which...(a)...(b)...and...(c)”
occur—something should happen. What should happen? The Bill is silent, and the construction of the English is so confused as to make it perplexing.
I do not want to waste the Committee’s time further. Either I have completely misunderstood and am being obtuse and stupid—I put my hand up and say that it would not be the first time—or there is some piece of syntactical messing around that can solve the problem. We shall not do that now—there is no point redrafting the Bill in Committee—but if the Minister and her officials could have another think, we might make some progress.
 
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