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Police and Justice Bill
8.47 pm
Baroness Scotland of Asthal moved Amendment No. 191B:
For section 57 of the Crime and Disorder Act 1998 (c. 37) (use of live television links at preliminary hearings) there is substituted- “PART 3A LIVE LINKS FOR ACCUSED'S ATTENDANCE AT CERTAIN PRELIMINARYAND SENTENCING HEARINGS (a) applies to preliminary hearings and sentencing hearings in the course of proceedings for an offence; and (b) enables the court to direct the use of a live link for securing the accused's attendance at a hearing to which this Part applies, where he is held in custody at the time of the hearing.- (2) The
accused is to be treated as present in court when, by virtue of a live
link direction under this Part, he attends a hearing through a live
link from the place at which he is being held.
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- (1) This section
applies to any preliminary hearing which is to take place in the course
of the proceedings.
- (2) If it
appears to the court before which the preliminary hearing is to take
place that the accused is likely to be held in custody during that
hearing, the court may give a live link direction under this section in
relation to his attendance at the hearing.
- (3) If a hearing takes place in relation
to the giving or rescinding of such a direction, the court may require
or permit a person attending the hearing to do so through a live
link.
- (4) The court shall not
give or rescind such a direction (whether at a hearing or otherwise)
unless the parties to the proceedings have been given the opportunity
to make representations.
- (7) But the accused
may not give oral evidence through the live link during a continued
hearing under subsection (6) unless-
- (8) If in a case where it has power to do
so a magistrates' court decides not to give a live link direction under
this section, it shall-
- (2) If it appears to the court by or
before which the accused is convicted that it is likely that he will be
held in custody during any sentencing hearing for the offence, the
court may give a live link direction under this section in relation to
that hearing.
- (5) The
court may rescind the direction at any time before or during a hearing
to which it relates if it appears to the court to be in the interests
of justice to do so (but this does not affect the court's power to give
a further live link direction in relation to the offender).
11 July 2006 : Column 677
- (6) The offender may not give oral
evidence while attending a hearing through a live link by virtue of
this section unless-
The noble Baroness said: I shall speak to all the amendments standing in my name in this group. With the leave of the Committee, I intend to outline the nature of each of them relatively fully and to skim over the amendments tabled by others in the hope that that will help noble Lords to understand where the amendments fit and why their amendments may not be necessary.
The amendments in my name would extend the circumstances in which live links could be used in court in criminal cases. I apologise to the Committee for bringing forward these measures by way of amendment at this late stage. The justification for doing so is that they are needed to allow a pilot scheme to proceed, which would offer the potential for significant efficiency savings.
Amendment No. 191B would extend an existing provision that allows courts to order that a defendant in prison custody should attend hearings before the start of trial over a live link so that it would also apply, provided the prisoner consented, to sentencing hearings. That would permit the more effective use of existing live-link facilities and avoid the unnecessary transport of prisoners between prisons and courts. For example, under the current arrangements, where a defendant pleads guilty at a preliminary hearing, the hearing has to be adjourned and the prisoner brought to court before the court can proceed to sentence, even if the prisoner would like it to be dealt with otherwise. The amendment would allow the court to proceed straight to sentence, if appropriate.
The measure includes three safeguards to ensure fairness to the defendant. The first is that sentencing can take place over a live link only where the defendant consents. Secondly, where a defendant has to give evidence over a link, he or she must specifically consent to giving evidence in that way. Finally, the court will allow a live link to be used only where it is not contrary to the interests of justice to do so.
This amendment, by extending the definition of custody to cover police custody, will allow a pilot scheme to proceed in London. It involves using a live link between a police custody suite and a magistrates’ court operating rather later than normal court hours. Where a suspect has been charged and would otherwise have to be held in custody overnight, he might instead appear in court over a link, avoiding the need for a night in the cells. Where there is a guilty plea and the defendant is content to be sentenced on the spot, the case might even be disposed of there and then if the court decides that that is appropriate.
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The benefits are potentially substantial and we are anxious to assess them. But a pilot cannot happen until the existing law has been amended so as to clarify that the first hearing in a case may take place over a live link and that the link can operate from police custody as well as from a prison. In addition, the full benefits of the pilot will not be realised without provision for a convicted defendant to be sentenced over a live link, provided, of course, that he consents to be so sentenced. The amendment would make those changes.
I entirely understand Amendments Nos. 191C to 191J tabled by the noble Baroness, Lady Anelay, and the noble Viscount, Lord Bridgeman. They have proposed amendments to ensure that the live link facilities enable a defendant to consult his lawyer privately. That is perfectly acceptable and reasonable.
I can reassure the Committee on this point. We certainly agree that it is essential for defendants who are appearing by a link to have access to legal advice, just as they would if they were physically present in court. The existing provision in Section 57 of the Crime and Disorder Act 1998 for preliminary hearings to be held over a link operates on the basis that there are facilities available for the defendant in prison to consult his lawyer in the courtroom, although there is no such requirement on the face of the Act. That system has worked effectively for years. Facilities whereby the defendant could take confidential advice from his lawyer before a hearing, and speak to his lawyer by telephone during the hearing, could also be made available for the sentencing and appeal hearings for which links could be used if these amendments were passed.
The amendments of the noble Baroness, Lady Anelay, and the noble Viscount, Lord Bridgeman, would also require that, before a defendant could consent to be sentenced or to give evidence during a sentencing hearing over a live link, the court would have to have received written evidence that the defendant had taken legal advice about using a live link. I can reassure the Committee that the defendant will have the opportunity to take legal advice on whether to appear over a live link, but I do not believe that a defendant who refuses legal advice should be precluded from consenting to appear over a live link for sentencing. I also believe that it would cause unnecessary delay for a court to have to wait for written evidence that a defendant had received legal advice, when that legal advice might often be taken moments before the hearing, or even during the hearing, particularly if it all happens over a live link.
On Amendment No. 194F, I am also proposing an amendment to Schedule 15 to apply the new provision for live links to review of sentence hearings under Section 74 of the Serious Organised Crime and Police Act 2005. Such hearings allow the defendant’s co-operation with the authorities to be considered and their sentence varied, in limited circumstances. The defendant’s consent would be required, as it is for a sentencing hearing.
On Amendment No. 191K, I
am also seeking to introduce a new Chapter 1A into the Youth Justice
and Criminal Evidence Act 1999 that would allow
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One such measure—allowing vulnerable defendants to give evidence by way of a live link—requires legislation, as the existing statutory provision for witnesses explicitly excludes defendants. Giving evidence via a live link from a comfortable room in the courthouse, away from the formality of the courtroom itself, may be less distressing and difficult than giving evidence in the courtroom. We believe that we need to make this provision in order to bring us into compliance with our ECHR obligations.
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:
““live link” means an arrangement by which-11 July 2006 : Column 681
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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