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Viscount Colville of Culross: The noble Lord has made it very clear. It is quite right that it would not be possible to statutorily require the same judge or justices necessarily to sit at all stages. Nevertheless, the Minister has given the principle which I am sure will now be followed. He has forsworn what was in that previous document. I am extremely happy with the situation and I beg leave to withdraw the amendment.
Viscount Colville of Culross: At this stage, I wish to refer to the practicality and usefulness of Clause 27. It may be that other Members of the Committee will be able to make better contributions about this matter. However, we should examine the issue.
I am wholly in favour of the video recording of cross-examination and re-examination, particularly if there are not to be later recalls when the defence has eventually decided exactly what it is that it wishes to present to the court.
However, I wish to make certain that the introduction of that provision on to the statute book does not raise false hopes. I said at Second Reading--and I believe that the noble Lord, Lord Williams, has confirmed it--that since the Pigot Report suggested the whole of this procedure, there has been the intervention of the Criminal Procedure and Investigations Act 1996 which sets out a statutory progression of primary disclosure,
Time is not on the side of obtaining real and reliable evidence from the kind of people for whom special measures are required. The noble Lord, Lord Rix, will know better than I about some of the people with various other disabilities. But I know that the memory of children is very short. Three may be a delay of six to nine months between the time when the alleged offence occurred and the time when the children are asked questions about it, having first, in rather unfamiliar circumstances, seen the video recording of their own evidence-in-chief. They are then asked questions about it. They have great difficulty remembering what happened and being able to explain, in answer to questions, what occurred. They take refuge in saying that the incident happened a long time ago and they have forgotten. Consequently, their evidence is not as reliable or helpful as it should be to the jury or anyone else.
I am concerned about the timetable and the facilities and my Amendment No. 84 is relevant to that. My Amendment No. 135 repeals the special provision about facilities for video recordings for petty sessional divisions. If no facility is available in a magistrates' courts area another facility can be used somewhere else. The noble Lord, Lord Williams, mentioned that earlier, saying that there are sufficient venues for video recordings for all these proceedings. If that is the case, why repeal Section 32 which makes specific provision for that?
Whether or not there are sufficient venues, what is the timetable to be? How is justice to be improved by the provisions in Clause 27? I would guess that the defence would never be ready to cross-examine, certainly not without the risk of a further recall of the witness later on, until all the secondary disclosures have been made, the defence witnesses collected, statements taken by the defence solicitor and all that has been considered by defence counsel. Unless there is a speeding up of the process over and above what happens in the Crown Courts--certainly in my experience, and mine was one of the pilot courts in the video-recording process--children and other witnesses under a disability will be cross-examined on video months and months after the event. I seriously doubt whether that will be an improvement on the current situation in which they are cross-examined in court on the video-link, not subject to further recall as the Bill provides, their evidence standing or falling as they come across on the day.
I hope that the noble Lord, Lord Williams, will say that something special is to be done about such a case because the essence is speed. If speed is not introduced into the proceedings, I fear that all the admirable aspirations set out in Clause 27 will come to nothing and that hopes will be falsely raised and dashed when it is seen not to work. I look forward to his explanation of what is to be done to make the proposal effective and quick and being told that we shall take the opportunity of getting the evidence before the jury on videotape when the witness can remember what happened.
Baroness Mallalieu: Although I do not support any attempt to take Clause 27 out of the Bill, I express concerns about its practical effect. The ideal is to have a cross-examination following directly on from the evidence-in-chief and as near as possible to the time of the first complaint. The reality is that it will be a slow process to amass the necessary material for cross-examination, which in many cases may involve additional applications to the court for disclosure. In cases involving children, particularly those who have a relationship with local care authorities, it is not unusual for there to be applications for the disclosure of social services records, which often do not become available until shortly before trial.
I am troubled that attempts may be made to use the provision as a norm, or at any rate regularly, when at later stages it will be impossible for a judge to refuse an application to recall the child for further cross-examination because material has come to light which could not have been in the hands of the defence earlier. The end result may be that the child undergoes two periods of cross-examination rather than one. I would like the Minister to indicate whether he sees the provisions as being "the norm" or whether they will apply only in relatively exceptional circumstances where all the material is available and no further material is anticipated to be forthcoming.
Baroness Carnegy of Lour: From a lay person's point of view, all these complications that will prolong the process are not particularly easy to understand, but the point is that for a child this is absolutely impossible. The National Society for the Prevention of Cruelty to Children tells us that now the average length of time for a trial involving cases such as this is 10 months. That is the average, and for many it is longer. They say that it looks as though under this new process things will get worse. I think the noble Viscount has suggested that.
Childline have written to me to say that they get much involved with children in this kind of thing and that speed is of the essence in these cases. They are appalled at the thought of a long process. It just will not work, and even if it is the exception, as the noble Baroness, Lady Mallalieu, suggested it might be, what about those children who are the exceptions? I do not think it will do. Even if it means going back to the drawing board on this matter, I think we should do so, because anyone who understands anything about children will realise that they will not be able to give proper evidence. I do hope that the noble Lord, the Minister, is going to look at this very hard indeed.
Lord Rix: At the risk of appearing to be redundant, I would like to say that all this which applies to children also applies to people with a learning disability when it comes to the recall of evidence of actual facts of a case.
Lord Warner: I believe that the noble Viscount is right. Time is of the essence in relation to children's memories and the recall of events. I think we need to just remember the linkages between Clause 27 and Clause 21. There is in fact very little point, I would
If we only go through part of the process in which we actually have evidence in chief video-taped but we cannot video-tape the cross-examination and re-examination, all we shall end up with is a situation in which there is a real deterrent to prosecution because children will not come forward. It seems to me that we have to re-examine the way in which the court processes are working and in these particular cases we have to use our best endeavours to speed up the process and recognise the circumstances of the children involved in these cases.
Lord Cope of Berkeley: There seem to be two matters here. The first is the one which caused me to add my name to that of the noble Viscount so as to cause a debate on the Question that Clause 27 stand part. I refer to the difficulty of having the cross-examination outside the trial--in some cases well outside the trial in point of time, it seems--when the defence will not really be in a proper position to cross-examine as it would be by the time of the trial, having much more information, much more disclosure and all the rest of it.
It seems to me that it is extremely difficult to have a cross-examination taking place a long time before the trial takes place. This point was made to me by the Law Society and others. But that runs across the point which has also been raised in this most interesting little debate about the question of time that elapses between the offence and its coming to court. Like my noble friend, I have seen the suggestion that at the moment in child witness cases there is an average of 10 months--I repeat, an average--so presumably in some cases it must be quite a lot longer.
It has been my observation that one's appreciation of any span of time is actually not absolute as life proceeds, but it is a function of one's age. When you are 10 one year is 10 per cent. but when you are 60, 10 per cent. is six years. In a sense, the youngster who looks forward to Christmas at any point in the year sees it as being much further away than one does at 60, when it seems that Christmases come round very quickly one after the other. That is just an indication of the difficulties of taking evidence from children 10 months, let alone much more, afterwards.
That runs counter to the problems of having the cross-examination outside the trial. I do not see how to resolve those problems. I take the point made by the noble Lord, Lord Warner, that to separate the evidence-in-chief from cross-examination is also very difficult and could make one or the other less valid. It could actually make the evidence-in-chief less valid if the cross-examination is a long time after it; one should try and keep them together. The only answer is to speed
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