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Lord Williams of Mostyn: I am most grateful to the noble and learned Lord. There is no reason why Victim Support or any other caring organisation whether or not in loco parentis should not notify the court. That has been my experience in the past where similar organisations which are not in a quasi-parental or caring relationship have been helpful, but I undertake to check the matter further. Based on past experience I believe that that is the position, as the noble and learned Lord has correctly pointed out.

Lord Rix: With the assurance that the Minister has just given the noble and learned Lord, Lord Mackay of Clashfern, I am prepared to withdraw the amendment, with the proviso that I should like to read most carefully the Minister's very generous response to see whether or not it is necessary to contact his department again before the Bill reaches its next stage. On the basis of the assurances just given in the noble Lord's summing up, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 72 not moved.]

Lord Rix moved Amendment No. 73:

Page 13, line 5, at end insert--
("( ) The court must state in open court its reasons for refusing an application that a witness falls within subsection (2)(a).").

The noble Lord said: I am sure that distinguished members of the judiciary in England and Wales--a number of whom I am happy to say are present in the Chamber--will be fully supportive in assisting both defendants and witnesses in the granting of dispensations for special measures where appropriate. However, one must guard against the rejection of special measures on principle, whatever the principle might be, or without due consideration of the specific requirements of the individual.

While Clause 20 stipulates that a court must give its reasons for refusing an application for a special direction, there is no requirement on the court to state in open court its reasons for refusing an application for special measures on the ground of intellectual impairment. I envisage judges doing so as a matter of course but I should like to ensure that the process is open and transparent. I beg to move.

Lord Swinfen: My name is also to the amendment and I support it. I should have thought it essential to make certain that the court is accountable, and accountable to the public, which all courts must be. Such a provision may also be useful to a higher court should the case go to appeal at a later stage.

Lord Williams of Mostyn: I accept that. That means it would be inevitable that a court making such a decision and determination would feel obliged to specify its reasons in open court. I think that any judge who did not do that would be swiftly and severely rebuked by a higher court of appeal.

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As the noble Lord, Lord Rix, mentioned, the courts are required by virtue of Clause 20(5) to give their reasons for refusing an application for a special measures direction. I repeat: if a court decides in any particular case that a witness does not have the condition claimed, I do not believe that the court would fail to explain it.

I entirely accept that if witnesses are to have faith in the new system it is important for the courts to be clear about their reasons for refusing applications for special measures, in particular if a court accepts that a witness has a disability but does not accept that special measures would improve the quality of the evidence.

I believe that the best way to ensure consistency is trough training and guidance, not through added detail on the face of the Bill.

Lord Rix: I receive encouragement from the faces opposite that by withdrawing the amendment I am doing the right thing. Having received nods and smiles, in particular from the noble Lord, Lord Dholakia, whose name is to the amendment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 16, as amended, agreed to.

Clause 17 [Witnesses eligible for assistance on grounds of fear or distress about testifying]:

Lord Cope of Berkeley moved Amendment No. 73A:

Page 13, line 32, leave out from ("section") to end of line 34 and insert ("if he requests such treatment").

The noble Lord said: Clause 17 brings us to the question of witnesses who are vulnerable because of fear or distress for various reasons in any type of case. In those circumstances any witness can have the protections, the special measures, provided by the Bill--screens, or whatever is appropriate to his case. I think that we are all in agreement on that.

The amendment draws attention to subsection (4) of Clause 17 which makes special provision about complainants in sexual offence cases. As drafted, subsection (4) provides that such complainants will have such protection unless the court thinks that their evidence will not suffer by reason of their fear or distress as set out in subsection (1).

If the court thinks that their evidence will suffer, as described in subsection (1), they are eligible anyway. The subsection therefore at first sight appeared to achieve nothing. Complainants are either eligible under subsection (1) or they are not. But that makes one wonder why subsection (4) is in the Bill. I presume that someone asked himself the question as to whether complainants in sexual offences cases need special eligibility for protection even if the subsection does not provide it. If we fully trusted the courts, the provision would be totally unnecessary. However, by inserting a subsection along these lines, it makes clear Parliament's will that complainants in sexual offence cases should be especially eligible, even though the detailed provisions do not provide that.

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However, what special eligibility should complainants in sexual offence cases have for the measures set out? It seemed worth considering adjusting subsection (4) to provide that those complainants should have protection if they want it. In other cases it would be the court's discretion. In the case of vulnerable witnesses the court would wish normally to grant the application where those witnesses were frightened or in distress and unlikely to give good evidence on that account. But it would be the court's decision. However, in order to draw special attention in the case of sexual offences, we might wish to provide that it would be the complainant's decision.

Clause 19 (1) makes clear that parties to the proceedings--they presumably include the complainant and the prosecution--can request special measures; it is not always up to the court. The amendment provides that if a complainant in a sexual offence case requests the special measure, it should follow automatically. There is no doubt that fear and distress can be very great. We have read about that; no doubt some Members of the Committee have seen that in courts. I am not against drawing special attention to those cases. I do not believe that subsection (4) does so satisfactorily. I believe that Amendment No. 73A provides a better way.

Lord Thomas of Gresford: I regret that I have to oppose the amendment. In subsection (1) there is a burden upon a party who is calling a witness to satisfy the court that that witness is likely to give evidence which will be diminished by reason of fear or distress. The burden is on a balance of probabilities because the word "likely" is used. However, in subsection (4) there is a presumption in the case of a complainant that that person is eligible for assistance. It would be for the other party to convince the court on balance of probabilities that subsection (1) does not apply. Therefore there is a marked distinction as to where the burden of proving the issue lies between those two sections.

However, that is not the reason that I oppose the amendment. The tradition of criminal trials in this country is that they should be held openly; that the accuser and accused and their witnesses should be seen and heard on an equal footing. Over the years we have recognised that some vulnerable people require special protection. But a balance has to be sought in deciding the appropriate way to deal with vulnerable witnesses.

Stress is inevitable in the trial process. Any person who goes into court in any capacity, whether it be the judge, the jury, the advocates or the witnesses, is subject to a degree of stress. That is part of the process by which the truth ultimately emerges through our adversarial procedures. While it may be right to give special protection to people who are shown to be vulnerable, as these special measures do, one cannot take that too far. What is suggested by this amendment is that any complainant, however robust they may be in their personality, can, at their own request, require special measures. I find that dangerous.

Why do I find that so? It is easier to maintain a false story behind a screen or at the other end of a video link than it is to go into the witness box and confront the

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person against whom one makes allegations. To my mind, one can "cotton-wool" too much. If there are vulnerable witnesses, certainly there should be special measures, but if they are not vulnerable, let the traditions of fair and open trial in this country remain.

6 p.m.

Lord Williams of Mostyn: Under the Bill at present, as it has been rightly said, complainants in sexual offence cases will be presumed to be eligible for assistance unless the court is satisfied that they are not.

Therefore, the court will have to consider whether the witness's evidence is likely to be diminished by fear or distress. If it considers that the witness's evidence will not be affected, having considered the witness's own views under subsection (3), then it will decide that the witness is not eligible.

We expect that unless the witness satisfies the court that he or she does not need help, he or she is likely to be deemed eligible. It is then for the court to consider, on application, whether and which special measures would help.

There may well be cases where the court wishes to dissent from the witness's views, perhaps because of representations made by the prosecution or the defence. The court needs to keep proper control of the proceedings. We believe that it is important that the witness's views should not be paramount.

The effect of the amendment of the noble Lord, Lord Cope, would be to make the witness's views the only consideration for the court. It would remove the court's discretion to decide whether the witness was eligible for assistance.

Perhaps we may take the case of someone who is genuinely in fear or distress. That may well be such that the witness does not want to express it and seeks the protection of the special measures. The prosecution or the defence may well have other material extraneous to the witness's own request, which may well be compelling. I do not believe that the noble Lord's amendment deals with that situation at all. As a matter of principle, it should be for the court to decide whether a witness is eligible for assistance and not the witness, because I do not believe that the witness's determinative choice would be in the interests of the trial process. It seems to us that we have got it right in the current provision: those who need help are considered eligible for help while preserving the court's overall discretion. Having reflected on the way in which I have put the matter, I hope that the noble Lord will come to a different conclusion.

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