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9.30 p.m.

Lord Ackner: I have great sympathy with the object behind the amendment. The cases to which reference has been made must have been immensely disturbing to the persons who were cross-examined in the manner described. However, I should have thought that to take the reference to Article 6 of the human rights legislation would cause considerable problems. First, Article 6(3)(d) gives to everyone charged with a criminal offence the right to examine or have examined witnesses against him. To examine or have examined means that he can do it personally or he can do it through a duly authorised representative. I do not see where there is a right to impose upon a defendant the obligation to have representation. It seems to me he is perfectly entitled to say, "I wish to defend myself. I do not have confidence in lawyers and I wish to defend myself", in which case, as I read Article 6, he has the right to examine witnesses against him.

Secondly, with regard to the child witness, I respectfully submit that is an entirely separate situation. In regard to children one has to have special provision. In the case of children I should have thought it is utterly unlikely that the defendant, given the opportunity of being represented, would refuse that offer.

Thirdly, it is the obligation of the judge to control his court. I appreciate there are difficulties with difficult litigants but it is a question of the technique which, if not known, should be taught by the Judicial Studies Board. So long as the judge ensures that justice is done in his court, he has nothing to fear. Since I ceased being a sitting Law Lord I have turned part of my attention to arbitration. There has in the past been anxiety about the arbitrator restricting cross-examination, restricting discovery and so on and so forth. It has now become accepted--the recent Act on the subject of arbitration emphasises this acceptance--that so long as justice is done, the control of the procedure is for the arbitrator. The same applies to any ordinary court.

The defendant may insist on appearing for himself. In a rape case or a sexual case the nature of the defence is apparent either before the trial starts, as a result of statements having been taken, or can easily be discovered at an early stage in the trial. One overlooks the fact that the judge is perfectly entitled in his discretion to ask the jury to retire while he deals with problems relative to the future conduct of the case. He can establish quite simply, without any anxiety vis-a-vis the jury, what exactly is the defence. He can explain to the defendant, either at the outset of a cross-examination or at a later stage as he thinks fit, that he is to restrict himself to questions that are relevant, and that the judge

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will not allow cross-examination either to become irrelevant or to become hectoring or otherwise an abuse of the right to cross-examine.

If the defendant does not adhere to what the judge considers appropriate, the jury is then sent out while the judge explains to the defendant that he, the defendant, is not complying with his instructions and that if he continues in the manner that he proposes the judge will stop the cross-examination, or he will limit it to a period of another half hour, or an hour, or two hours, or whatever he thinks is appropriate. So long as the judge ensures that justice is done in his court, he has nothing to fear. I am quite sure that the Court of Appeal will support the decision that he takes.

I think that what has arisen is a result of novelty and difficulty in being satisfied that one does not either alienate the jury by interfering too much, or run the risk of being criticised for not doing justice. It is a new situation for many judges. I believe that it should be the subject matter of guidance from the Court of Appeal, the Judicial Studies Board, or both. But to impose a prohibition on a litigant in person not to ask any questions of the defendant seems to me prima facie to be a denial of justice and to be contrary to what is provided in Article 6(3)(d) in particular. I therefore resist the amendment.

Lord Thomas of Gresford: The noble Lord, Lord Ackner, has said so much more clearly what I had intended to say that I have little to add. I support everything that he said. If the Judicial Studies Board requires any guidelines to be circulated to judges who deal with cases of this sort, I hope that it will take the noble and learned Lord's speech and do so tomorrow. He encapsulated everything that needs to be said.

It is a difficult issue. A Motion in similar terms to the amendment is to be discussed at the Liberal Democrat conference shortly and therefore whatever I say is a personal view.

I do not think that the comment made by the noble Baroness, Lady Anelay--that rape cases are dealt with sometimes by circuit judges--should be allowed to pass. Those judges have the greatest experience of the criminal law on a daily basis, and no rape case will be put before a circuit judge who is completely inexperienced. He will have experience of the type of case he has to try. The particular case to which the noble Baroness referred was tried by a very competent, able and caring judge. If one puts oneself in her position one can imagine that she was constrained, as the noble and learned Lord, Lord Ackner, said, on the one hand by a desire not to alienate the jury and by so doing to lead to an acquittal, or to give grounds for an appeal which would enable the person convicted properly by a jury to be acquitted.

With the advice that the noble and learned Lord has given, I am sure that this unique problem, as it was at that time facing a very experienced judge, will be dealt with along the lines indicated by the noble and learned Lord.

Baroness Mallalieu: I have concerns about the amendment although I support the intention underlying it.

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First, very few defendants charged with serious offences of this type choose to represent themselves. Most have more sense and recognise that a trained advocate is needed. There is a very small number of cases where a defendant has chosen to conduct his own defence and, if the press reports are true, (which I think is not always the case) has used the opportunity to cause distress or to try to intimidate the complainant.

I respectfully agree with all that has been said by the noble and learned Lord, Lord Ackner, and by the noble Lord, Lord Thomas, about the existing powers of a judge to deal with these situations. They are extremely difficult. But the powers are undoubtedly there and the judge in the last resort, if other means fail, can put paid to any further questioning.

Giving evidence is stressful for any complainant. A complainant in a sexual case may well be frightened of the defendant. But so may the complainant in an attempted murder case, or one involving serious violence or cases which involve defendants who are known to the complainant. All that can be done to enable a witness to give evidence as satisfactorily as possible, with the least possible amount of strain--whether by use of screens or sympathetic guidance about the court procedures beforehand or, with children, the use of videos--should be done. The right to defend yourself without a lawyer is an important right which should not be lightly removed. When it is abused, the judge should intervene. I believe that most judges do. I also believe that most judges would welcome guidance from the Court of Appeal to indicate to them that they may use those powers freely in an appropriate case. For those reasons, I cannot support the noble Baroness's amendment.

9.45 p.m.

Lord Falconer of Thoroton: I should make clear straight away that the Government share the concerns that underpin this amendment. Many noble Lords mentioned the horrific case in which a witness in a rape case went through six days of cross-examination. We are determined that vulnerable witnesses should not have to go through that type of experience. We have already pledged to provide greater protection to victims in rape and other serious sexual offence cases. In June last year, we set up an inter-departmental review of the way in which vulnerable or intimidated witnesses are treated in the criminal justice system, including a consideration of ways to prohibit unrepresented defendants from personally cross-examining victims in rape and serious sexual offence trials. That group has already met on a number of occasions. It meets again in March, and it is to be hoped that shortly thereafter its product will become known.

The new clause proposed by the noble Baroness, Lady Anelay of St. Johns, introduces in effect a blanket prohibition on defendants in rape and serious sexual offence trials from personally cross-examining the victim. It makes no provision whatsoever for alternative procedures to be invoked where defendants are unrepresented to ensure that the interests of justice are served. The effect therefore, on the basis of the existing amendment, is that the defendant who chooses

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to be unrepresented has no right to cross-examine the main witness against him. There are many issues that need to be addressed, including how we can balance the needs of the victim and the victim's right not to be subjected to this type of dreadful experience, with the right of the defendant to a fair trial. We need to take into account the other measures being considered to provide greater protection to vulnerable or intimidated witnesses. And for the reasons given by the noble and learned Lord, Lord Ackner, we must also take account of our obligations under the European Convention on Human Rights.

The clause that is proposed makes no provision for the victim's evidence to be tested. As the Committee will appreciate, in rape and serious sexual offence trials it is the victim's evidence which is normally crucial, and if that evidence cannot be tested, its weight could be so seriously reduced that the prosecution might be left unable to pursue the case. We want to ensure that that does not happen.

The Government remain committed to measures which, consistent with the interests of justice, protect victims of rape or serious sexual offences from direct cross-examination by the defendant. We will seek to take action as soon as possible, but we are determined that any changes we make will stand the test of time and be consistent with our obligations under the European Convention on Human Rights.

I note the remarks of many Members of the Committee regarding greater judicial intervention to seek to obviate the problems. I am sure it is the case that there is a place for judges to try to protect witnesses where it is appropriate to do so. Rape cases are always tried by either a High Court judge or a senior and experienced circuit judge who is, as it were, licensed for the purpose of trying such serious cases. So I do not believe that simply because a circuit judge tries a case, as suggested by the noble Baroness, Lady Anelay, that gives rise to any real concern as to the quality of the judges trying such cases. For the reasons I have given, I hope that the amendment will not be pressed.

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