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Baroness Anelay of St. Johns: I thank the Minister for his reply and the explanation so carefully given as to the steps which the Government are currently taking in order to test ways in which the situation can be improved so that the alleged victims in such cases may not be put through some of the experiences that they have had in the recent past.
I wish to make one or two comments in response to contributions from other noble Lords. I am, of course, aware that it is senior circuit judges who hear rape trials. But whoever the judge hearing the trial, it is not simply in one case that problems have arisen. I chose the most severe case, so far as I am aware, and one that has had perhaps the most publicity. However, I am aware from research sent to me by victim support groups in the country of other cases where the victims--I use the word "victims" because they are all cases where the defendant was subsequently found guilty--were put through the most appalling experiences simply for the gratification of the defendant and where no relevant information was elicited.
I would always defer to the interpretation by the noble and learned Lord, Lord Ackner, of the European Convention on Human Rights. I notice that in the case of De Oliveira, the defendant was statutorily barred from carrying out his own defence. As I am sure the noble and learned Lord is aware, he was not allowed the legal representative of his own choice and therefore problems arose. That is why guidance notes were provided and why I quoted that. The situation has arisen where we do not have the legal right to defend ourselves in person in certain cases.
I have no intention of pressing the amendment to a Division tonight. I listened with humility to what was said, but before I formally withdraw the amendment I end by making the comment that the Minister said that the case I mentioned was one where six days had been spent in cross-examination. For many victims, six hours would be too much. If what we have done tonight makes us all, including judges, think a little more carefully about how evidence is tested, then perhaps I have achieved my objective.
Lord Ackner: Before the noble Baroness sits down, I feel that I must intervene. "Six days" gives a false impression of day after day after day. That is not what occurred, as I understand it. There were breaks and adjournments because the complainant did not feel well. If it was all added together, the actual period spent under cross-examination, while grossly excessive, was nowhere near the equivalent of six days of cross-examination.
Baroness Anelay of St. Johns: I shall not prolong the discussion except to say that I imagine that in this victim's case for every minute of the six days she felt she was under the most appalling pressure in cross-examination, even if she was not physically answering questions from that person every minute.
Like the noble and learned Lord, I have been present at rape trials. I have been present when someone has patently been wrongly accused, as well as where someone has been found guilty and where the evidence was overwhelming. I am sure that we all feel for defendants in these cases when they are wrongly accused, but I feel for those who are victims. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 28 [Aim of the youth justice system]:
Lord Goodhart moved Amendment No. 177:
The noble Lord said: I rise to speak to these amendments in place of my noble friend Lord McNally who is unable to be present this evening. The three amendments, Amendments Nos. 177 to 179, are linked. They have support from, among other organisations, the Law Society and Justice. The original drafters of the amendments were the Law Society.
The reason for moving the amendments is that Clause 28, as it stands, is one-sided, in our view, in saying in subsection (1):
The prevention of offending is one of the principal aims of the youth justice system, but it should not be seen as being the only aim or even the principal aim. Another aim, surely, is the welfare of the child.
The aim of the youth justice system is not just to protect people from criminal offences committed by children and young persons; its aim must also be to divert children and young persons from adopting a criminal lifestyle in their own interests as well as in the interests of society as a whole. Having the sole aim of preventing offending is not only in itself unbalanced and one-sided, it is also contrary to our international obligations under, in particular, Article 3 of the United Nations Convention on the Rights of the Child, to which this country is a party. Article 3 says,
It does not say "the" prime consideration but, at the very least, "a" prime consideration and therefore surely a principal aim. The welfare of the child should be recognised therefore as a principal aim alongside the prevention of offending.
A different point was raised by the Law Society. That is responsible for subsection (a) of the amendment. The youth justice system involves not only the police and the prosecution, it also involves the courts and the defence lawyers. It is not the duty of the court, except in relation to its powers of sentencing, to prevent offending. The primary duty of the court is to hear the evidence and to decide whether the guilt of the child or young person is proven.
It is certainly not the duty of defence lawyers to prevent offending. Their primary duty is to the child as a client, against which must be balanced their duty to the court. The defence lawyers have a duty to test the prosecution case and to cross-examine prosecution witnesses. They have a duty, as the amendment says, to,
Indeed, one aim of any criminal justice system must be to prevent offending. But a criminal justice system also has other aims. One of those aims is to ensure that allegations of crime are tried fairly before an impartial tribunal, as required by the European Convention on Human Rights. In the case of a youth justice system, the protection of the interests of the child is surely also a necessary and important aim of the system.
Amendment No. 177 is perhaps of symbolic rather than of practical importance, but symbolism is important when setting the tone of legislation. That is why Clause 28 needs modification on the lines suggested in the amendment. I beg to move.
Lord Williams of Mostyn: Clause 28 of the Bill is intended to provide a clear statement that the principal
Obviously, the other issues which the noble Lord, Lord Goodhart, has identified are of importance, but we have dealt with the point quite fully and clearly in Clause 28(2). It provides that all persons and bodies carrying out functions in relation to the youth justice system must have regard to the principal aim in addition--I underline those two words--to any other duty to which they are subject; that is, international convention duties, European convention duties, and others. For instance, Section 44 of the Children and Young Person Act 1933 requires courts to take account of the welfare of the child or young person in fulfilling duties. That is the particular purpose behind the structure of Clause 28, and in particular, subsection (2).
Lawyers are bound by their professional codes, as are doctors. Judges and magistrates are bound by their judicial oaths. We do not need to spell those out because we have encompassed them all in Clause 28(2). We are not saying that the only aim is that specified in Clause 28(1). We are saying that it is a principal aim and that we have dealt with all other matters compendiously, and, I hope, appropriately, in Clause 28(2). We do not overlook the aspects to which the noble Lord Goodhart, referred. We think they are already included in Clause 28(2). The one thing the youth justice system needs is clarity of purpose, and that is what Clause 28(1), with the further ramifications provided for in Clause 28(2), provides. I hope I have satisfied the noble Lord that he does not need to press his amendment.
Lord Goodhart: I noticed that in replying the noble Lord, Lord Williams of Mostyn, referred to the aim spelt out in Clause 28(1) as a principal aim, which is exactly the point I was making. It is a principal aim, and quite rightly so. No one would deny that for a moment. I believe that there is an important symbolic value in making it clear that, in relation to youth justice, when we are dealing with the interests of young persons and children, preventing offending is a principal aim but must be balanced against others of equal importance, including, specifically, the welfare of the child. However, I do not seek to take the matter further today. I therefore beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 178 and 179 not moved.]
Clause 29 [Local provision of youth justice services]:
[Amendment No. 179A not moved.]
Page 22, line 4, leave out ("It shall be the principal aim") and insert ("Aims").
"It shall be the principal aim of the youth justice system to prevent offending by children and young persons".
"In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, or administrative bodies, the best interests of the child shall be a primary consideration".
"protect and advance the legal interests of the child or young person".
10 p.m.
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