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Baroness Amos: My Lords, I beg to move that the House do now adjourn during pleasure until 8.30 p.m.

Moved accordingly, and, on Question, Motion agreed to.

[The Sitting was suspended from 7.47 to 8.30 p.m.]

Youth Justice and Criminal Evidence Bill [H.L.]

House again in Committee on Clause 26.

Viscount Colville of Culross moved Amendment No. 82:

Page 19, line 15, leave out subsection (3) and insert--
("(3) In considering for the purposes of subsection (2) of this section or subsection (1) or (2) of section 27 whether any part of a recording should not be admitted under these sections, the court may refuse to allow evidence on which any party proposes to rely if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.").

The noble Viscount said: I apologise to the Committee for introducing this topic immediately after an admirable repast. This matter is difficult and complicated but I hasten to assure the Minister that I seek clarification and do not intend to press this collection of verbiage to a Division. Perhaps I may explain the problem that I identify with these provisions. Clause 26 deals with evidence in chief to be used in a wider variety of cases than originally provided for which

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was only in relation to children. When a video recording of evidence in chief is prepared it is done by means of an interview by people who have very special training. There is a great deal of guidance and manuals and so on are produced to enable this to be done according to a code.

Nevertheless, on occasions it goes wrong. A judge in the Crown Court where these matters mainly occur has a discretion whereby evidence that would otherwise be admissible is excluded on the grounds that it is unfair to allow it to be put before the jury. There are a number of different principles whereby evidence may be so excluded. That the principles should be clear is of enormous importance. It has been said this afternoon that it is not very easy to get convictions in some cases where there is abuse of vulnerable people. It is not for me to say whether or not people should be convicted, but the judiciary certainly should not be hampered by any lack of clarity as to what is its job. If there is an application by either party for evidence to be excluded on the ground that it is unfair the judge must apply the correct principles. If he or she does not do so and there is a conviction it will be overturned by the Court of Appeal because the principles on which the decision has been reached by the judge are wrong. The fundamental issue therefore is to get the principles right.

In common law a criminal judge always had the ability to exclude evidence which would otherwise be admissible on the grounds that it was unfair. In the Police and Criminal Evidence Act two provisions were added to the existing law: one was Section 78 in the terms that I have set out, broadly speaking, in my amendment; the other was Section 82(3) which preserved in so far as it was still required--sometimes it was--the old common law position. That was in 1984. On the basis of Section 78 a very great deal of judicial guidance has been built up in cases before the Court of Appeal. One can refer to quite a large book if this matter arises. All of these cases are individual and one cannot discern a direct precedent but one has the principles and seeks to get the matter right.

When the idea of the video recording of testimony by child witnesses was introduced in the Criminal Justice Act 1991 a new set of provisions was grafted on to the Criminal Justice Act 1988. It took the form of a number of amendments to Section 32 of that Act: the addition of Section 32A and a number of other matters. Section 32A is to be repealed by Schedule 4, as one sees from the top of page 60, as is a good deal of Section 32.

When I raised this matter on Second Reading, however, the noble Lord, Lord Williams, said that I should take comfort from the fact that in Clause 26 of the Bill the test as to a judge's exercise of discretion on admissibility was the same as that found in Section 32A(4), as it is now, of the Criminal Justice Act 1988. Broadly speaking, that is true. In Clause 26 one finds a very similar provision in subsections (2) and (3).

There are, however, very substantial differences. In Section 32A(3) of the 1988 Act, as inserted in 1991, the power to exclude evidence was made subject to the exercise of any power of the court to exclude evidence

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which would otherwise be admissible. In other words, as I read it, it was subject to the provisions of the Police and Criminal Evidence Act referred to earlier. There is no repetition of that saving in Clause 26 of the Bill.

Unfortunately, it does not stop there. Clause 26 of the Bill, together with the repeal provisions, effectively takes the place of Section 32A of the 1988 Act as inserted in 1991. If it is amended so as to accord with the provisions of the 1991 Act that may be adequate for the provision of evidence in chief. Unfortunately, nothing has been provided by way of principles for the exercise of a judge's discretion in relation to evidence that may be video-recorded under Clause 27. There is no cross-reference between Clause 26(2) and (3) and the provisions for cross-examination and re-examination to be video-recorded and presented to the court under Clause 27.

As the position now stands--I am aware that there are Members of the Committee who are extremely familiar with the situation and will put me right if I am wrong--even with child witnesses there may be a contest as to the admissibility of some parts of the video-recorded evidence in chief. For instance, during one of the breaks which are allowed to take place in the course of the video recording the child may go out, and the other party (usually the defence) says that during that period the child was coached. The child comes back, continues the video recordings and produces all the necessary information and evidence about the offence with which the court is concerned. There is objection about what happened during the gap and one has to hear evidence about it.

That situation will continue to occur. The Bill has simplified the tests for the Crown Court judge. It has made them different from those under the Police and Criminal Evidence Act. I do not know what they are supposed to be. However, there is now the proposition that cross-examination and re-examination should be on video as well, and a further problem arises. There is no reference in the Bill about the principles for admissibility of evidence and fairness. In the course of cross-examination there is often a pause because the attention span of the witness may be brief. There has to be a short adjournment. There is an allegation that the witness was coached. As a result there may be a challenge as to the admissibility of what happened thereafter.

Furthermore, there is provision in Clause 27(5) and (6) for the recall of a witness in certain circumstances even after cross-examination and re-examination. It can occur only on the basis that some new material has come to the notice of the defence, and it therefore wishes to recall that witness. At that moment--I speculate because no one knows how the provision will work--some part of the pre-recorded video of the cross-examination may come under challenge. Some additional evidence may throw doubt upon the safety of allowing the material to go before the jury. Nothing in the Bill states the principles which the judge has to apply.

As I read the Bill, the judge has to apply to examination in chief the principles derived from Clause 26 alone without paying attention to Sections 78 or 82(3) of the

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Police and Criminal Evidence Act. For the purpose of admissibility of cross-examination or re-examination there is no guide. Presumably one goes back to the terms of the Police and Criminal Evidence Act. If that is so, there is a different test. The words are different as regards the principles that the judge has to take into account now and those which will apply to examination in chief, cross-examination and re-examination in the future.

I seriously doubt that I have the position right. I cannot believe that the noble Lord, Lord Williams, would present a Bill to Parliament which does not clarify that situation. The amendment merely reproduces the formula in Section 78 in the hope that we might have a constant provision throughout the jurisdiction. In the hope that we shall have an explanation of how the provision is to work, I beg to move.

Lord Thomas of Gresford: I support the amendment put forward by the noble Viscount. I cannot attempt to match his analysis of the interplay between Sections 26 and 27. However, when admissibility of evidence in a criminal trial is being considered by a judge it is clearly desirable that he applies one test. For him to have to turn from one statutory provision to another in order to determine the correct test is unacceptable and confusing. If there is to be a different test, it is a matter that will trouble the Court of Appeal. We are familiar with the test set out in the noble Viscount's amendment from Section 78 of the Police and Criminal Evidence Act. It is frequently before the court and frequently in the minds of judges. It is obviously the correct test. I invite the comments of the Minister on the amendment.

8.45 p.m.

Lord Williams of Mostyn: As currently drafted, Clause 26(3) of the Bill is based on the test for admissibility of video evidence which already is to be found, as the noble Viscount correctly points out, in Section 32A of the Criminal Justice Act 1988. That test required the judge to balance the possibility of the jury being prejudiced against the defendant by a part of the recording with the desirability of showing the whole recording intact so that there is in fact a complete picture of the witness's evidence.

It was developed for the specific circumstance of video recordings. The court might consider, for instance, that the recording shows an exchange between questioner and witness which the rules of evidence would exclude but which could be edited out without damage to the rest of the recording being used in evidence. Alternatively, the court might prefer--indeed, the defence might wish it--to allow the whole recording to be shown and the jury warned that it should have regard to the prejudicial nature of the question and the consequential answer.

Section 78 of PACE is intended for evidence in general. It is not adapted to the specific question of video-recorded evidence. I am not sure that the noble Viscount's amendment explicitly provides for the possibility of part of the recording being excluded while the rest was admitted.

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I do not think that the test will be confusing for judges. It is substantially the same as is already used under Section 32A of the 1988 Act. The amendment would also extend the reach of the new subsection (3) to the editing of video-recorded cross-examination. We need to remember that the cross-examination will have been controlled by a judge with all the parties to the case present. We believe that anything prejudicial to the defendant should have been stopped at the time of that hearing. However, subsection (4) of Clause 27 allows a video recording of a cross-examination to be excluded after it has been made if the rules of court or the direction allowing the cross-examination have not been complied with. We think that they are sufficient safeguards.

I turn to Section 78 and Section 82(3) of PACE since both sections were mentioned by the noble Viscount. Section 82(3) of PACE preserves the common law power of the court to exclude any evidence at its discretion. Neither that nor Section 78 of PACE overrides Section 26(3), which is simply specific additional provision on the admissibility of video evidence under Section 26. On the basis of the advice I have received, it seems to me that Section 78 continues as a general provision enabling the courts to refuse to allow any evidence on which the prosecution proposes to rely, subject to the question--it is what Section 78 is supposed to preserve--of the overall fairness of the proceedings.

Section 78 applies to all evidence, as we can see from the case of R v. Mason, Vol. 86 Criminal Appeal Reports. It is not limited, as used to be thought, to the admissibility of confessions. There is no reason to think that Section 78 does not apply to prosecution evidence under Clause 26. I do not believe therefore that the amendment is necessary as regards prosecution evidence.

We are dealing with new bases of admissibility of types of evidence because we are applying it further to what has been known in the past.

I know that the noble Viscount has gone to a good deal of trouble in relating Clauses 26 and 27, to Sections 78 and 82(3) of PACE and the various possible differences of nuance that there might be to the judicial approach. Therefore, whether or not the noble Viscount intends to press the amendment--he indicated that he was probing--I wish to give a certain amount of thought to the inter-relationship between Clauses 26 and 27 of the Bill with Sections 78 and 82(3) of PACE. I agree entirely with the noble Viscount that one wants to put one's mind to these inter-relationships and to consider, and reconsider for my part, whether there may be some fudging of the different criteria that ought to be applied under the respective clauses. I undertake to do that. I shall write to the noble Viscount and to the noble Lord, Lord Thomas, and those Members of Committee who have shown an interest. I shall also put a copy of my reply in the Library.

Not for the first time, the issues raised by the noble Viscount are certainly well worthy of further consideration and I undertake to give them that.

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