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Lord Henley: My Lords, I thank the noble Lord for his introduction of the new clause as set out in Amendment No. 10. We have no objection to that. We welcome the change of heart that it seems to indicate on the part of the Government. I seem to remember that in Opposition they firmly opposed the removal of the so-called right to silence.
I intervene on this occasion to speak not to Amendment No. 10 but to Amendment No. 105 in the group. I have a number of concerns raised by that amendment. The noble Lord presumably grouped Amendment No. 10 with Amendment No. 105 because it would not be possible to have the new clause unless one amended the Long Title of the Bill, as does Amendment No. 105. As well as adding in the Long Title,
That brings me to another point. It is a point which arose from remarks made by the noble Lord, Lord Hylton, when he spoke to but did not move Amendment No. 3 earlier. He seemed to imply when speaking to that amendment that he had received advice from the Lord Privy Seal that it was not appropriate to move Amendment No. 3 and one or two others. I presume from that the Lord Privy Seal was advising him that those amendments were not within the scope of the Bill and that therefore it would not be right for him to move them at Third Reading.
Baroness Mallalieu: My Lords, I wonder whether my noble friend could give me some reassurance in relation to Amendment No. 10. This amendment was introduced for the first time at Third Reading, although it is right to say that the noble Lord, Lord Williams of Mostyn, did trail it as a "forthcoming attraction" at the Committee stage. However, I am concerned to know whether there has been any consultation with the Bar Council, the Law Society or the Criminal Bar Association.
When a defendant is aged between 10 and 14, in reality the decision on whether to give evidence is not taken by the child. It is the decision of the advocate. The child does what he is advised to do. Indeed he is usually quite incapable, no matter how carefully it is explained, of understanding the meaning of "adverse inferences" or what the consequences of the choices open to him are. There may be very good reasons that fall short of those given by the noble Lord for advising the child not to give evidence. He may be inarticulate and not able to give a proper account of himself. He may be frankly terrified and likely to be an appalling witness. It may be that the effects of giving evidence and being cross-examined are, in the view of his family although not perhaps of a psychologist, personally likely to be damaging.
In practice I suspect that there will be few cases where a magistrate or a judge would think it right to direct a jury or indeed to direct themselves that adverse inferences should be drawn from a child's failure to give evidence where counsel has so advised. However, I wonder whether the noble Lord could tell me where the pressure for this change comes from. I am not aware of any difficulties. Ten year-olds were expressly and for good reasons excluded from this part of the 1994 Act. Why is this change now considered to be necessary?
Lord Renton: My Lords, I am grateful to my noble friend Lord Henley for mentioning that if my Amendment No. 30 is to be accepted, as I hope it may be, the amendment concerning the Long Title in Amendment No. 105, the last on the Marshalled List,
Lord Meston: My Lords, it is perhaps unfortunate that the noble Lord, Lord Henley, referred to the advice which the noble Lord, Lord Hylton, I think has received in respect of his amendments when the noble Lord is not in the Chamber. Of course that is an accident and nothing more. But, as I understand it, the noble Lord, Lord Hylton, has taken the course he has decided to take in respect of most of his amendments on the Marshalled List for Third Reading not for any reason other than that they apparently are not sufficiently different from those amendments which failed at the Report stage, suffering as they did the procedural mishap--
Lord Meston: My Lords, the noble Lord, Lord Hylton, is now in his place and perhaps he can put us right if he has had a chance to catch up with the debate. I certainly understood there were procedural reasons why he felt unable to proceed with at least some of his amendments at this stage.
The Lord Bishop of Bath and Wells: My Lords, I should like to ask a question about this provision which supports the question which the noble Baroness has put, so to speak, from the legal environment. I should like to ask a question from the moral environment, not that that is in contrast to the legal environment, but just to give it a further dimension.
The Minister stated that one of the priorities of the Bill has been the protection of small children. Indeed, it includes legislation which intervenes in the lives of children at risk to bring them into the sphere of greater care and support and to try to prevent the brutalisation of children that takes place in their lives both at home and on the street. At various places in the Bill we see children exposed to the adult world, its procedures and expectations. The removal of the doli incapax is one part of this, and I understand the reasons why that has been removed. However, this further removal of the right to be silent seems to me to be a further exposure to that adult world. If the purpose of the Bill in a very deep way is to protect children, I cannot understand how this provision furthers that protection.
The childhood of a person seems to be a very fluid idea and one which is quite difficult to grasp sometimes as we tackle this Bill. It would be wrong not to register the fears that we have that this provision, with certain others, removes boundaries of protection from children which are necessary. The Minister said that the two reasons why this further amendment was needed was, first, not to be inconsistent with the removal of the doli incapax. The other was to achieve consistency with other laws. My question is: how is this consistent with the purpose and priorities stated in the Bill to protect children?
Lord Thomas of Gresford: My Lords, following upon the comments of the noble Baroness, Lady Mallalieu, would the Minister confirm that there is no reason why an advocate appearing for a child between the ages of 10 and 14 should not reveal to the magistrates or to a jury that he had given advice to the child not to give evidence in a particular case? If that were not to happen, it would be quite unfair for a tribunal of fact to draw an adverse inference against a child who had been so advised. I hope the Minister can help me with that.
Lord Williams of Mostyn: My Lords, I do not think that it is professionally proper to tell a court what advice one has given to one's client, whether an adult or child--not directly. It seems to me it would be perfectly proper to say either to the magistrates or to the jury in the Crown Court: "This is a young child and you have to bear in mind that I have been acting for him or her and I would ask you not to draw any adverse inferences against the child". I do not think one would be entitled to go further than that.
However, I do not think it is my present duty to be giving legal opinions on how advocates, solicitors or counsel address juries or magistrates. The noble Baroness, Lady Mallalieu, asked me what consultation there had been. There was no consultation on this because, as I have said, this is simply making it consistent with what already obtains in Sections 34, 36 and 37 of the 1994 Act. I am bound to say that I would tend to agree with her that in practice adverse inferences would be perhaps relatively rarely drawn and of course the nature of the inference might differ. Sometimes an inference may be heavily adverse and sometimes almost vestigial, if existing at all.
The right reverend Prelate asked about the boundaries of protection. We do not wish to take them away but simply to introduce a harmony and consistency with what presently obtains and has obtained since the passage of the 1994 Act. I respectfully repeat, in other words, that there are no restrictions at all on drawing inferences from the failure to mention those matters which are specified in Sections 34, 36 and 37.
I do not think it is appropriate for me to say anything about what the noble Lord, Lord Hylton, said. It is unfortunate, I agree with the noble Lord, Lord Meston, that the noble Lord, Lord Hylton, was not able to be present in the Chamber when the question was raised, but of course it was not I who raised it. In respect of Amendment No. 105, the death penalty amendments which were put down by my noble and learned friend Lord Archer of Sandwell were not outside the scope of the Bill. The amendment concerning the Long Title is simply consequential, which is not the same matter as
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