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Lord Williams of Mostyn: I cannot accept the amendment. I know that it is well-intentioned, but I believe that the consequences would be adverse. Clause 20(6) is intended to enable the rules of court to stop parties from renewing applications for special measures once the court has turned them down. The exception, quite rightly, is where there has been a material change of circumstances.
Applications for special measures will normally be made at a pre-trial hearing. It is very important that any directions made about special measures to be used at the trial should be binding. The purpose of this is to ensure as far as we can that the witness will know before the trial how he will be giving evidence and will be able to prepare himself appropriately. The judge must take into account more than simply the witness's circumstances. He must decide whether those circumstances will have an effect on the quality of the witness's evidence; whether the measures proposed will be able to improve the evidence; and whether special measures might inhibit the ability of other parties to test the evidence effectively. Therefore, there may be a number of good reasons to refuse an application for special measures not related to the witness's disability or distress.
We do not think it right that the parties should be able to renew applications simply because they do not like the decision. It will delay the trial, which is a vice, and more importantly and fundamentally, it will be confusing and distressing for the witnesses. The first application should be the last application unless there is an actual change in circumstance which means that
different measures might be needed or that the court might sensibly take a different view. I am sorry to put this quite so plainly, but I think the noble Lord's amendment will do a great deal of damage to those who need protection.
Viscount Bledisloe: May I ask the noble Lord a question? "A material change of circumstances" normally in law, I think, means something that has happened since the application was made and not facts that were available at the time of the application. Supposing the facts had not been fully laid before the court on the first occasion, perhaps because the witness had a disability or through fear did not really explain the situation properly. Should it not perhaps say whether there has been a change in the circumstances which were put before the court on a prior occasion, to allow for the situation where there were facts which the court did not know about but which do not technically amount to a change of circumstances because they have not occurred since the application was made?
Lord Williams of Mostyn: That is certainly a point which I will consider. However, I do not want to be in a position of allowing, encouraging or enticing those who make applications simply to be able not to place the circumstances upon which they rely fully before the magistrates or before the judge at a pre-trial hearing on the basis that they can say "Well, we did not have this information available and this is a material change of circumstance". I will certainly look at that, but at the moment, subject to reviewing the point that the noble Viscount has made, I think that the present formulation is right. I will certainly look at it again, but without any undertaking, because I think we have got it right.
Lord Rix: I should hate to cause any damage to court proceedings with regard to people with a disability and others, as indicated by the Minister. I am of course delighted that he is prepared to look at these slight alterations to a part of Clause 26 and no doubt we shall see signs of this at the next stage of the Bill. With that in mind, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 20, as amended, agreed to.
Clause 21 [Special provisions relating to young witnesses]:
Lord Ackner moved Amendment No. 78:
The noble and learned Lord said: Clause 21 deals with special provisions relating to young witnesses. The tiny amendment which I seek is to Clause 21(2) which says that,
Lord Renton: I should like to support the amendment moved by the noble and learned Lord with extreme
Lord Cope of Berkeley: The noble and learned Lord, Lord Ackner, was indeed extremely brief and perhaps, because of that brevity, he did not make an additional point which has occurred to me--but knowing his expertise, it may also be that it is not a very good point! It seemed to me that subsection (5), to which all this is subject, does indeed give a good deal of discretion to the court and goes a long way towards saying "may". Therefore, it would be much better if the word "may" was inserted as the noble and learned Lord suggested.
Lord Warner: I should like to suggest that we do not pursue this particular amendment and I should like to draw your Lordships' attention to the fact that for 10 years there have been on the statute book provisions in relation to video-taped evidence by children. It seems to me that the Bill as drafted gives a pretty clear message about the will of Parliament in this kind of area. Perhaps I may draw your Lordships' attention to a point that I made at Second Reading. It is worth bearing in mind a Home Office police research report published in 1996. It found, and I quote,
I draw your Lordships' attention also to some of the statistics that I quoted at Second Reading. I will not repeat them, other than to show that prosecutions for sexual abuse of children of one kind or another dropped very dramatically between 1985 and 1995, when the Pigot recommendations were in force. I suggest to your Lordships that this actually demonstrates that there might perhaps be some lack of enthusiasm on the part of some courts for admitting video-taped evidence. If I may, I would suggest that we keep to the working of the Bill as presently framed.
Lord Williams of Mostyn: As the noble Lord says, Clause 21 creates the presumption that witnesses under 17 will give their evidence-in-chief by means of a video recording made before trial and any further evidence at the trial will be given by live television link.
The court cannot, on the current drafting, dispense with these measures unless it is satisfied that they would not improve the completeness, coherence and accuracy of the child's evidence. This amendment, if carried, would dispense with this presumption, making the arrangements merely a possibility for the court to consider.
The noble Lord, Lord Warner, is quite right that this would undermine arrangements for child witnesses which have been in place since 1992, because they were inserted by the Act of 1991 in the Criminal Justice Act of 1988. Since that time which, as the noble Lord said, is several years ago, it has become increasingly common for child witnesses to give their evidence-in-chief on video soon after the alleged offence has taken place. A child's memory is often fresher at that stage and it reduces the number of times a child must be taken through his evidence, and the less formal setting outside the court can mean that the child is more relaxed and able--this is the important aspect--to give better evidence.
Since the amendments to the Act of 1988, many children have benefited by giving evidence at trial by live link away from the intimidating setting of the court and away from those who are sometimes unsympathetic and sometimes hostile. Until now, live link has been available mainly for children in cases of sexual offence or physical assault allegations. We believe the measures should become the norm for all child witnesses. We live, after all, in a visually literate society, which is well used to the medium.
The Bill therefore creates the presumption that all child witnesses who are called to give evidence should be able to do so by video-recorded evidence and live link, no matter what the offence being tried, unless the court is satisfied that the measure is not needed by the witness. The importance of Clause 21 and its present presumption is that it gives those working with children confidence to make a video recording of evidence-in-chief in the expectation that it will be admitted; it will give a child some certainty about how he will give evidence at trial. Everyone who has worked with children in these circumstances knows that one of the terrible burdens we put upon them is the burden of uncertainty--how the child is to give evidence very often many months after the alleged incident, and many months to a child of tender years is a lifetime.
We recognise that we need certain exceptions. If the court can be satisfied the witness does not need the measures, it will not have to award them. That applies if the court considers that other measures would meet the child's needs or that the child did not need any measures at all. Of course, the overarch is that the court can still exclude a video recording or part of it if it considers that would be in the interests of justice or because proper procedures and rules had not been followed when it was made.
The noble Lord, Lord Thomas of Gresford, indicated earlier--I agree with him--that the court process is stressful for judges, for practitioners and for advocates. But we need to bear in mind that a child is not just a small adult; it has different needs that we have overlooked for far too long. We are therefore adamant in our view that this clause is properly drafted for the circumstances with which we deal.
Page 16, line 17, leave out ("must") and insert ("may").
"In such a case the court must (subject to subsection (5))give a special measures direction...".
I am seeking to remove the word "must" and put in the word "may" so that there is greater flexibility. I beg to move.
"There now appears to be considerable reluctance on the part of judges to allow video evidence and interviews to be used."
I suggest that we need to stick to the wording in this particular Bill because this Bill is actually about ensuring that the courts give adequate protection to vulnerable children, particularly in cases involving sexual abuse. I suggest that this amendment would actually weaken that kind of protection.
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