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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.
I hope that I have indicated with sufficient clarity the occasions when consent is to be asked for, first in relation to sentencing and then in relation to those other matters. I hope the Committee will feel that the Court of Appeal is safe to be trusted with the Human Rights Act, the ECHR, the PACE conditions and the need to have a lawyer. I shall certainly be very happy to consider these matters further and to write more fully in response if noble Lords feel that that is appropriate.
We do not think
that there has been any improper haste in bringing these matters
forward. It is not easy to see why a defendant should feel more under
pressure as a result of an immediate court appearance
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As to the point of the noble Baroness, Lady Linklater, in relation to juveniles, I remind her—I know she is very familiar with this—that juvenile courts are specifically created to be less intimidating. Some children—dependent on their age, I know—welcome the fact that they are, for once, included in proceedings. Many children are often excluded and things happen behind their backs—they are not involved and they are not made to feel responsible—and this can inure to their disadvantage. We do not think that it should be applied to all children because, if it were, we would have all children giving evidence via a video link if they were under 17. I am not sure whether that is what the noble Baroness is suggesting but, just to put it on record at this stage, we would find that very difficult to accept.
We shall have an opportunity to talk further about this and we will be able to respond more fully if the noble Baroness, Lady Harris, on reflection, having had the opportunity to read what I have said at great speed in introducing these amendments, thinks that it is necessary.
I very much thank Members of the Committee for the very helpful and collaborative way in which they have responded. If we were into teasing, I could tease the noble Baroness, Lady Anelay, by saying that I hope she is not seeking to suggest that those who should justly be in prison should be put elsewhere, but that, too, can be left for another day.
Baroness Anelay of St Johns: I teased the noble Baroness because it is the Government, in their early release schemes, who are releasing from prison those who should be there. We can see the difficulties arising from those with life sentences who have been lost after release by the probation service. However, we will return to those matters another day.
I am grateful to the noble Baroness for her statement that it is not the Government’s intention to return to night courts. I notice that she did not say that these provisions would preclude that, but I take on trust what she said. We will consider further whether any amendment needs to be made, but I certainly accept her assurance.
The Minister also
gives proper recognition of PACE and the protections it contains. Of
course we accept that, but it is a question of the interplay between
the protections of PACE as operated by the police and the need of
people accused of a crime to be able to get the protection of legal
advice as well. She is right to point out that there has to be a
provision for refusing legal advice. On occasion it is the very people
who refuse it and then plead guilty who ought to have taken it in the
first place. They then get tied up in
11 July 2006 : Column 688
I accept what the Minister says about the cases likely to be at the lower end, although they are not necessarily confined there by these provisions. One would expect that to be the case. I hear what the Minister says about consent; there are still some matters where expressed consent will not be required but may be acceptable.
So far, I have been looking from the point of view of protections for the defendant. Since it is late, perhaps I may be a little frivolous, although the police may not consider it so. I saw a report last week about another use of new technology: the police are piloting the use of a helmet with a camera on it so that you are really banged to rights if you are arrested. I had this apocalyptic vision of the Government’s justice system: the police take the video, nab the person and say, “Right, my son, here you are, it’s midnightand the next thing you are going to do is pleadguilty by live link”. That is a potentially interesting development.
Baroness Scotland of Asthal: Perhaps I may help the noble Baroness. In our arrangements, the wonderful thing is that the defendant can simply say, “No, I don’t want to plead guilty. I just want to be bailed”.
Baroness Anelay of St Johns: Let us hope they have the relevant advice and the good sense to do that where it is right to do so. We are on the same side, but for some people, it is much better if the thing is disposed of properly. All of us want the proper protections to be in place so that the right result is achievable even if it is not always achieved in the justice system.
So far, I have looked at all the procedures from the point of view of the defendant, who may or may not be guilty. But one’s overall concern is still with the victim, as the noble Baroness says—the victim and the public. There is accountability to the victim and the public which sometimes only a court appearance can bring. We must get the right balance and make sure that we do not avoid public accountability through a court appearance where that is the right thing to do.
I welcome the opportunity to look at these matters during the summer. In the mean time, I beg leave to withdraw the amendment.
Amendment No. 191C, as an amendment to Amendment No. 191B, by leave, withdrawn.
[Amendments Nos. 191D to 191J, as amendments to Amendment No. 191B, not moved.]
On Question, Amendment No 191B agreed to.
9.30 pm
Baroness Scotland of Asthal moved Amendment No. 191K:
11 July 2006 : Column 689
- After section 33 of
the Youth Justice and Criminal Evidence Act 1999 (c. 23)
(interpretation etc of Chapter 1 of Part 2) there is
inserted-
- (1) This
section applies to any proceedings (whether in a magistrates' court or
before the Crown Court) against a person for an offence.
- (2) The court may, on the application of
the accused, give a live link direction if it is satisfied-
- (3) A live link direction is a direction
that any oral evidence to be given before the court by the accused is
to be given through a live link.
- (6) While a live link direction has
effect the accused may not give oral evidence before the court in the
proceedings otherwise than through a live link.
- (7) The court may discharge a live link
direction at any time before or during any hearing to which it applies
if it appears to the court to be in the interests of justice to do so
(but this does not affect the power to give a further live link
direction in relation to the accused).
- (1) In section
33A “live link” means an arrangement by which the
accused, while absent from the place where the proceedings are being
held, is able-
11 July 2006 : Column 690
[Amendments Nos. 191L to 191N, as amendments to Amendment No. 191K, not moved.]
On Question, Amendment No. 191K agreed to.
Baroness Scotland of Asthal moved Amendment No. 191P:
- (1)
In section 22 of the Criminal Appeal Act 1968 (c. 19) (right of
appellant to be present at criminal appeal hearings in Court of
Appeal), after subsection (3) there is inserted-
- “(4) The Court of Appeal may give
a live link direction in relation to a hearing at which the appellant
is expected to be in custody but is entitled to be present (by virtue
of subsection (1) or leave given under subsection (2)) at any time
before the beginning of that hearing.
- “(5) A
live link direction under section 22(4) does not apply to the giving of
oral evidence by the appellant at any hearing unless that direction, or
any subsequent direction of the court, provides expressly for the
giving of such evidence through a live link.”
- (3) In section 31(2) of that Act (powers
exercisable by single judge), after paragraph (c) there is
inserted-
[Amendments Nos. 191Q and 191R, as amendments to Amendment No. 191P, not moved.]
On Question, Amendment No. 191P agreed to.
Clause 47 [Orders and regulations]:
Baroness Henig moved Amendment No. 192:
11 July 2006 : Column 691
The noble Baroness said: I shall also speakto Amendment No. 193, standing in my name. Amendment No. 193 is the key amendment, Amendment No. 192 being consequential. It is very much a probing amendment.
We debated at length on earlier Committee days the proposals to put many of the Bill’s provisions in secondary legislation and I do not wish to rehearse all those issues. However, as I said, key principles should be placed in primary legislation while only genuine matters of administrative detail should be in secondary legislation. I am not entirely convinced that we have yet achieved that balance, although I note and thank my noble friend for her offers to continue discussions with key stakeholders over the summer to try to resolve some of the more contentious issues.
I would expect that ultimately, and in some cases rightly, many provisions will still be subject to secondary legislation. The question then arises about whether those provisions should be subject to negative or affirmative resolution procedures. My noble friend has already indicated that she is likely to accept the recommendations of the Delegated Powers and Regulatory Reform Committee. The amendment would clarify what further issues she thinks should be subject to positive resolution—which are the important matters of principle that she would accept ought to be debated by Parliament and which are merely matters of administrative detail. Given that the criminal justice system is such an important guarantor of the freedoms of the people of this country, does she agree that it is important that fundamental changes to it should be fully scrutinised and debated by Parliament? I beg to move.
Baroness Harris of Richmond: I support Amendment No. 193. The amendments would remove references to the process of negative resolution whereby orders put forward by the Secretary of State under aspects of this Bill would not necessarily be debated by Parliament, as the noble Baroness, Lady Henig, said. It makes all order-making powers proposed in the Bill subject to positive resolution, which means that orders must be debated and approved by both Houses of Parliament.
Once again, and finally, we reiterate that we have concerns about how secondary legislation is being used within the Bill to determine or change key constitutional functions. Assuming that at least some of those key aspects will remain in the Bill at the end of the legislative process, this is an additional safeguard to limit the use of those powers and ensure that secondary legislation formulated under the Bill is open to some parliamentary scrutiny.
Baroness
Anelay of St Johns: I added my name in support of
Amendment No. 193. The noble Baroness, Lady Henig, has neatly returned
us, at the end of day four in Committee, to the concerns underlying all
the debates that we had on that first day in Committee when we looked
at the number of matters that had been shifted from primary to
secondary legislation. She has underscored the concerns that we retain,
not
11 July 2006 : Column 692
Of course, I appreciate that Governments want flexibility, but there are some occasions on which one loses the security and effectiveness of an organisation if one removes matters from primary legislation. We have concerns about the maintenance of the tripartite relationship and the way in which it has been built up because of some of the provisions in the Bill. That is a signal to the fact that when we reach Report, we shall want to focus on some more closely defined issues. We had—or at least I had—a scattergun approach on the first day in Committee. I know that I shall spend the summer looking at the Bill far more narrowly. There may be only two or three issues that I shall wish to return to, but in some strength, on the matter of what should be in primary and secondary legislation and what is the appropriate method of scrutiny of that secondary legislation. So this is an appropriate way in which to end our debates. I know that there is a technical government amendment to follow, but otherwise the noble Baroness has achieved a neat and elliptical move.
Baroness Scotland of Asthal: I certainly agree with the noble Baroness, Lady Anelay, that this is a nice way in which to end, because it is a summation of where we have reached at the end of these four days in Committee. The short answer to my noble friend Lady Henig is that those orders are listed in Clause 47(5). We have said that we shall look again at the provisions relating to the membership or functions of police authorities with a view to tabling amendments on Report. I certainly envisage writing more of the detail into primary legislation. The Delegated Powers and Regulatory Reform Committee did a very good job in looking through the specific details and trying to differentiate between those aspects that could properly be dealt with by negative resolution and those that should properly be dealt with by affirmative resolution. I reaffirm my commitment that we shall together look at those issues between now and Report so that we can better hone any issues on which we can no longer agree.
I hope to be able to convince noble Lords that the division that we shall eventually arrive at is fair and proper. I absolutely understand that the noble Baroness in her scrutiny will come to a slightly different balance, but I hope that we shall not, because through this trilateral partnership that has taken place on many Bills we have been able to come to a resolution that has inured to the benefit of everybody. I am very hopeful that we shall be able to do that again. With that promise, I hope that my noble friend and noble Lords opposite will be content to rest this issue here and to move swiftly on to our last remaining, short consensual amendment.
Baroness Henig: I am very grateful for what my noble friend has said and the conciliatory spirit in which the points have been made. In view of the lateness of the house, I beg leave to withdraw the amendment.
11 July 2006 : Column 693
Amendment, by leave, withdrawn.
[Amendment No. 193 not moved.]
Schedule 15 [Minor and consequential amendments]:
Baroness Scotland of Asthal moved Amendment No. 193A:
“(b) that any computer containing any program or data to which the accused by doing that act secured or intended to secure unauthorised access, or enabled or intended to enable unauthorised access to be secured, was in the home country concerned at that time.”The noble Baroness said: This amendment will ensure that persons accredited by the police under provisions included in Clause 13 are not eligible to serve as chairman or members of the Independent Police Complaints Commission. This will bring them into line with other categories of accredited person. I beg to move.
Lord Dholakia: I am rather confused. Did the Minister just talk about the members of the Police Complaints Authority under Amendment No. 193A?
The Deputy Chairman of Committees (Lord Haskel): It is Amendment No. 194A.
Lord Dholakia: I was talking about No. 193A.
Baroness Scotland of Asthal: I thought we were on Amendment No. 194A. I beg your Lordships’ pardon. Amendment No. 193A was in a group that was debated and agreed previously by the Committee, and I was going to move it formally. I went straighton to the next substantive amendment, Amendment No. 194A.
Lord Dholakia: I intended to ask another question on Amendment No. 193A. I hope the Minister will not mind. This is about Section 2 of the Computer Misuse Act. I find it very difficult to understand why a person guilty of an offence in England and Wales under subsection (5) is liable to imprisonment for a term not exceeding 12 months, but, on summary conviction in Scotland for the same offence, is liable to a term not exceeding six months. I wanted to know precisely why there was this difference.
The second point I wanted to talk about, following the argument used by the noble Earl, Lord Northesk, was on Amendments Nos. 193A and 193B. We were talking about computer hacking. The government amendment talks about Section 5 of the Computer Misuse Act, which says,
- “that
any computer containing any program or data to which the accused
secured or intended to secure unauthorised access by doing that act was
in the home country concerned at that
time”.
11 July 2006 : Column 694
Baroness Scotland of Asthal: I confess that to give the noble Lord a full explanation about the latter issue would take a little time, not least because of the complexities of the matters raised by the noble Earl, Lord Northesk, who is not in his place. I ask the noble Lord if he will allow me to write to him on those matters.
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