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My amendment enables the court to grant a defence application to give evidence over a live link if it is satisfied that three conditions are met: first, that it is in the interests of justice to do so; secondly, that the use of a live link would enable the defendant to participate more effectively in the proceedings; and, finally, that there is an identifiable reason why the defendant has a problem with giving oral evidence. The test for that last reason is different for juvenile and adult defendants to reflect the fact that it may not be that uncommon for juvenile defendants to require assistance in giving oral evidence. However, there should be a strong presumption that adult defendants are able to give oral evidence in court.
Amendments Nos. 191L and 191M, in the names of the noble Lord, Lord Dholakia, and the noble Baroness, Lady Linklater, would reduce the age at which the reduced threshold applies so that only those under 17 would benefit. For the purposes of the youth justice system, 17 year-olds are classified as children. I see no reason to depart from that policy and not to offer them the same safeguards as other children have for live video links. As the noble Baroness, Lady Linklater, has a clear devotion to children’s issues, I believe that she will concur with me on that.
In addition, the amendments of the noble Lord, Lord Dholakia, and the noble Baroness, Lady Linklater, would remove the requirement about a juvenile defendant’s identifiable reason—a low level of either intellectual ability or social skills—for having difficulty giving evidence orally in court. My amendment aims to ensure that vulnerable defendants receive a fair trial. Therefore, in due course, we will oppose their amendments, because they would allow all juvenile defendants to seek to avoid giving evidence in person in court. I gently suggest that defendants should be able to avoid giving evidence in court only if there is a risk that giving evidence in the courtroom itself would prevent the defendant from
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On Amendments Nos. 194ZA, 194G and 194H, I propose minor consequential amendments to the Youth Justice and Criminal Evidence Act 1999 under Schedule 15 and minor amendments to Clause 52, to ensure that reporting restrictions regarding the new clause allowing vulnerable defendants to give evidence over a live link does not apply in Scotland, which would have required a legislative consent motion.
On Amendment No. 191P, I propose to amend Section 22 of the Criminal Appeal Act 1968 to allow appellants to appear at the Court of Appeal (Criminal Division) over a live link from custody. The senior judiciary is very supportive of this amendment, which will help to prevent delays in court hearings regarding the transport of prisoners to the Court of Appeal. Noble Lords will be aware that in the majority of cases the appellant never gives evidence but can appear. Such an appearance can be incredibly disruptive for the appellant and, indeed, unnecessary for the court.
Amendments Nos. 191Q and 191R, again in the names of the noble Lord, Lord Dholakia, and the noble Baroness, Lady Linklater, would make it clear in the Bill that facilities would be available for appellants to consult their lawyer when present over a live link. The amendments would require that an appellant consented before a live link was used and that a defendant took legal advice before consenting to appear over a live link. They would also make it clear that the Court of Appeal must be satisfied that the use of a live link was not contrary to the interests of justice. Again, I can assure the Committee that facilities will be made available for appellants to consult their legal representatives. However, I hope that the Committee will agree that the Court of Appeal can be trusted to deal appropriately and fairly with appellants without further safeguards in the Bill.
Finally, Amendment No. 197 amends the Title to make it clear that the Bill involves changes to the circumstances in which live links can be used in court.
I have tried to explain the amendments comprehensively because I know that the Committee has not had an opportunity to consider them before. I understand that fuller consideration may be necessary and I hope that noble Lords will not press their amendments at this stage, although I also understand that that will not preclude them from coming back at Report or later to raise further issues of clarification. Indeed, those may conveniently go into the basket of issues that we may discuss between now and when the matter returns to the House. I commend the amendments and I beg to move.
9 pm
Baroness Anelay of St Johns moved, as an amendment to Amendment No. 191B, Amendment No. 191C:
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The noble Baroness said: I shall speak also to my remaining amendments in the group, Amendments Nos. 191C to 191J. Given the late hour, I do not propose on this occasion to speak to the further government amendments or the Liberal Democrat amendments in the group. At first sight, the government amendments appear to be a welcome development, but it is right that the noble Lord, Lord Dholakia, should have tabled his amendments to require the Government to justify their proposals. I entirely agree with the Minister that we will need to consider all these matters further in a constructive way before we reach Report in the autumn.
It is always difficult when amendments are tabled at this stage, when a Bill has already passed through another place, to consider new matters of policy, because, when matters return amended from here to another place, another place can debate them only under the procedure for the Commons consideration of Lords amendments—a very truncated procedure subject to the guillotine. I am grateful to the Minister for expediting these matters and bringing them forward in Committee before the Summer Recess. I know that that has put some extra pressure on the Bill team, whose members are to be congratulated on having expedited these matters so that we do not have to wait until Report to deal with them.
I am also grateful to the Minister for saying that she fully realises that, although we want to consider the constructive measures proposed by the Government, we will agree tonight on the new clauses being inserted in the Bill on the basis that that is not a hostage to fortune and we may need to return to them after a period of reflection.
There is indeed much with which we can agree, but some concerns have been raised about aspects of the new clauses. We are certainly in favour of reducing delay in the criminal justice system. Delay does not serve the interests of the public, the victims or the defendant; all are disserved by it. But if it is to be justice, as the old chestnut has it, it must be seen to be fair. We all agree on that. So I welcome the signal from the Government that they are looking for practical solutions to delays in the criminal justice system. Using modern technology to its best extent is an innovative and practical way forward and could be a real bonus to everyone.
The question is whether the Government's proposals are justifiable and appropriate. The noble Baroness has spoken at reasonable length to her amendments and I propose to do the same, in the hope that that will inform those whom we will need to consult during the Summer Recess and considerably shorten any proceedings that we need to undertake at
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When I first heard of the new clauses last week, it was on the basis that these proposals were to prevent the churn factor whereby those who are in prison awaiting a bail hearing or sentencing find themselves bussed out at some stage during the day—sometimes after some delay—and taken around the country while various other prisoners are dropped off at other courts, never knowing whether at the end of the day, when they have been sentenced, they will return to the same prison or have to go somewhere else a considerable distance away. Some may have sympathy for the prisoners, and some may not, but one can certainly have sympathy for the system itself, which is not functioning most effectively or efficiently. It is certainly right that the Government should look at practical measures to deal with the problem. Of course, I could have the immediate teasing reaction this evening and say that churn is even worse when the Government have their prisons stuffed full and do not have the proper measures in place to ensure that prisoners are well looked after, and that all they do is let them out on early release to be a threat to the public—but I shall not go down that avenue tonight.
I recognise that, whatever the prison population under any Government, it is more practical and proportionate to provide for live links to carry out proceedings that can be more properly dealt with in that way than by upsetting the whole system and involving a lot of people in unnecessary trouble. It is simply a question—our amendments are all about this—of which proceedings should be subject to this expedited procedure.
Late last week, when I received the draft new clauses and the covering letter from the Minister, it became clear that the proposals are rather more wide-ranging than we had originally anticipated. A particular concern has been raised by the prospect of a pilot project, to which the Minister has referred, which appeared—I stress “appeared”—to signal a return of the Government’s plans for night courts. I would be grateful if the Minister, who is shaking her head, could further clarify that. I thank her for her letter, which she and her officials prepared overnight and which arrived in my e-mail just as I came into the Chamber this afternoon. In that helpful letter, for which I am grateful, they refer to the night courts and to the pilot. They also repeat much of the original letter, so I will not do the same. They say that, although the magistrates’ courts participating in the pilot would need to operate rather later than normal court hours, they would not be open all night.
That gives rise to two questions. First, can the Minister explain how the new clauses would prevent the introduction of night courts without further legislative provision? Secondly, what consultation has there been with the Magistrates’ Association on the proposals for a pilot in London, and what was its response? The problem is that, although the Minister appears in her covering letter to give some assurance that the provisions are not about night courts, thenew clauses seem to give carte blanche to such a development.
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This will not surprise the Minister, as I asked this question last night, but, as the proposal is heralded as a pilot, why not have a time limit on the power and then proceed more widely with further enabling powers once the pilot has been shown to work properly? What is the disadvantage in that? I am grateful to the Minister for meeting me yesterday evening to have a preliminary discussion on these matters. I also thank Justice, Liberty, the Prison Reform Trust, the Magistrates’ Association and the Law Society for their very swift response to the first sight that we gave them of the new clauses at the end of last week. My amendments have been tabled simply to raise some of the issues that they raised, and no more at this stage.
I am keenly aware of the delays that are sometimes caused by waiting for the defendants in custody to arrive in courts, and we will support any measures that can properly reduce such delays. Although the holding of preliminary and/or sentencing hearings by video link may be sensible and expedient in some cases, it may disadvantage the defendant and the court in others. We believe that a defendant should not be sentenced, give oral evidence or attend an appeal via a video link without his consent, and that he should be legally advised before consent is given. My amendments, as the Minister has recognised, have been tabled simply to raise that concern.
One of the disadvantages of live links is thatthey can make it difficult for the defendant to communicate confidentially with his, or her, lawyer. We therefore propose amending the definition of “live link” to ensure that facilities are available for such communication to take place. My amendment would ensure that in addition to being able to communicate with the court during the hearing, the person could seek and obtain legal advice from his legal representatives so that he and they are not disadvantaged in giving and receiving advice and instructions by reason of the live link. We need to know how that fits in with the protections under PACE and other protection measures to be sure that there is a proper way of people getting advice, and that it is confidential advice.
Of course, the ability to give instructions and receive legal advice and confidence is an essential part of the guarantee of a fair trial. It is of particular importance that live links do not compromise the ability to do so. I recognise that the Minister has said that she is not seeking to do that, it just how we get there. It is of even more importance if, as envisaged in the proposed new clauses, first appearances in the magistrates’ courts and sentencing can take place via the live link. Surely, that could mean that in some cases the only meeting between the defendant and his legal representative could be via the link. I look back to the second paragraph of the noble Baroness’s letter that came overnight in which she says:
“Facilities whereby the defendant could take confidential advice from his lawyer before a hearing and speak to his lawyer by telephone during the hearing would be available for the sentencing and appeal hearings for which links could be used if these amendments were passed”.
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That part of the letter, which has not yet been seen by outside organisations, needs to be considered by them, because I think that the noble Baroness has taken us one stage further.
Other amendments in my group provide that the court should not proceed via live link without the defendant’s informed consent, following legal advice. The presence of the defendant in the court at pre-trial and sentencing hearings is an important safeguard for several human rights under the ECHR. As we have often said, the scars of self harm or abuse may be much more evident to the eye in person than on the video link, but it would have to be taken into account in any move forward in the way in which the Government propose.
The proposal that a person could plead guilty and be sentenced by the magistrates from police custody perhaps creates a risk that the person may be, by inducements or oppression, persuaded to admit the offence and plead guilty at the police station. I know that the noble Baroness will return to issues about PACE and protections in the system. It is a concern that it may influence the police and the CPS in making charging decisions to charge a person and put them before the video link court rather than using alternative disposals such as cautions and restorative solutions. We have certainly supported the Government in seeking those alternatives in the past.
The Magistrates’ Association says that it has a serious objection to the idea of custody including police stations and local authority accommodation. It finds this entirely unacceptable and says that the reason given by the noble Baroness in her first letter—because it has not seen the second letter—is alarming. It says that the concept of someone being taken to a police station, charged and then being offered an immediate court hearing by video link, rather than spending a night in custody, is an obvious example of pressure and improper incentive. It feels that this would not be efficiency but improper haste where the safeguards might not be adequate. I would be grateful if the noble Baroness could respond to the Magistrates’ Association’s concerns, which she may want to do more fully in a letter to me and perhaps the association. I feel sure that she will seek to talk to its members during the Summer Recess.
In conclusion, our amendments would ensure that a defendant should be sentenced or give evidence via live link only with his consent, and that the potential disadvantages of so doing should be explained to the defendant by his legal representatives before he gives that consent. In particular, I would be most grateful if the Minister could clarify whether there are any occasions on which live links will be used where a person is not required to give his or her express consent. I beg to move.
9.15 pm
Baroness Linklater of Butterstone: I rise to speak to Amendments Nos. 191L, 191M and 191P which address the issue that all children under the age of 17 are eligible for the live link direction. Having listened to the Minister, I am aware that there is a lot of common ground here and we welcome further
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The purpose of the amendments is to introduce consistency, clarity and common sense into the clause. Under the Youth Justice and Criminal Evidence Act 1999, witnesses under the age of 18 are eligible for special measures on account of their age alone. It also recognises that their youth may make it necessary to make special measure directions so that the quality of their evidence can be maximised. However, the new clause does not include this provision for all child defendants. Instead it inserts an extra criterion that a child’s level of intellectual ability or social functioning must compromise their ability to participate effectively in the proceedings. We would argue that the criteria for ordering special measures for all witnesses, including the defendant, should be the same. Therefore we would change the age from 18 years old to 17 because that is the age under which children are eligible for special measures as witnesses on the ground of age under Section 16 of the Youth Justice and Criminal Evidence Act.
We also propose that the additional requirement regarding intellectual ability or social functioning be removed for children under 17 because it is simply not fair and may also force the court to make difficult determinations in all youth cases on the child defendant’s level of intellectual ability or social functioning. This in turn could lead to expert evidence in some cases, which would be costly, lengthy and enormously complicating. Indeed, if questions arise on whether a child’s level of intellectual ability or social functioning is compromised, it is questionable whether the child should be involved in a trial at all. A video link may indeed help a child to be less intimidated by the process of giving evidence, but it will not ease the difficulties for a child in participating effectively in a trial or understandingthe proceedings and their gravity, such as making decisions and giving instructions to his or her legal representatives. There will be some children for whom this is and will remain impossible.
As I have said, we would welcome further discussions with the Minister on this, so we regard these amendments as probing in nature.
Baroness Harris of Richmond: I shall speak to Amendments Nos. 191Q and 191R tabled in my name and that of my noble friend Lord Dholakia. Both amendments were commended to us by Liberty and Justice. They would ensure that in addition to being able to communicate with the Court of Appeal during the hearing, the person could seek and obtain legal advice from his legal representatives so that he and they would not be disadvantaged in giving and receiving advice and instructions by reason of the live link. We believe that it is an essential part of the guarantee of a fair hearing that a person can communicate in confidence with his legal representatives at the Court of Appeal.
Baroness Scotland of Asthal: I hope that I have been able to give some comfort to all three noble Baronesses, Lady Anelay, Lady Linklater and Lady
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I want to put on the record that it is absolutely not our intention to reintroduce night courts. I would also be more than happy to place a copy of the letter I wrote to the noble Baroness, Lady Anelay, and copied to the noble Lord, Lord Dholakia, in the Library of the House so that it is available for other noble Lords better to consider the details contained therein. In that letter, I make clear that we will test the concept of the use of live links in magistrates’ courts through a pilot to be run at rather later than normal court hours. The most important thing is to identify the London courts which are willing to participate in the pilots and negotiate with them on the kind of framework they are going to have. It would have been quite improper for us to have started negotiations on that matter, either with them or, indeed, with the Magistrates’ Association, before coming to this House and seeking permission to so do.
I very much welcome the comments made by the noble Baroness and her appreciation that these amendments have a practical orientation as opposed to anything else. They are designed to speed up proceedings and I can reassure the Committee that the Government do not in any way wish to diminish the rights of the individual in relation to access to lawyers or the way in which PACE applies. There are clear opportunities to save time and effort in relation to defendants, victims and witnesses. Justice delayed is justice denied, and delays can be very distressing for victims and for defendants who wish to admit guilt quickly and to be dealt with. I envisage that the kinds of cases that are likely to be disposed of in this way will be at the lower end of the scale. With most other offences, risk assessments and other issues have to be dealt with, reports have to be obtained in relation to sentencing and it simply is not possible to dispose of the more complex cases without the benefit of a little more mature reflection.
I invite the House to remember that we now have a new process in relation to charging. It is no longer the police who charge; the Crown prosecutor has to be satisfied about the nature of the charge and that the evidence produced is sufficient to charge. So, if you like, we have another safety net as regards the propriety of doing that and we believe that these provisions will be efficacious.
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