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Viscount Colville of Culross: I think so, too, and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 28 [Examination of witness through intermediary]:
Lord Williams of Mostyn moved Amendment No. 85:
The noble Lord said: For your Lordships' convenience, I will speak to both Amendment No. 85 and Amendment No. 85A. Amendment No. 85 is in the name of the noble and learned Lord, Lord Ackner, who has indicated to me that he very much regrets his inability to be here this evening for a domestic reason, which I fully honour and, if necessary, will explain. Amendment No. 85A is in my name in the words set down on the Marshalled List. Essentially, the reference is more specific about intermediaries and exactly what they may do.
It is important that intermediaries should be allowed to give explanations in response to questions or answers, if necessary, to help the court and the witness to understand each other. Theirs is not dissimilar to the function of a foreign language interpreter. It is simply to enable the witness and the court to understand one another.
Of course an intermediary must not represent the intent or the particulars of a question or, in particular, of an answer. That is true of foreign language interpreters and it is true of intermediaries. Occasionally an explanation may be needed--for example, an explanation of a difficult word where a simpler word might have been used, or an explanation of a word that the witness uses for a personal place or experience that otherwise would not be easily understood by the court. That is explaining what the witness meant to the court as opposed to what the questioner meant to the witness. The court can of course reject any explanation offered by the intermediary or require the intermediary to clarify the answer with the witness. The judge, magistrates, jury--if there is one--prosecution and defence lawyers will be able to see and hear the witness and the intermediary communicating.
It is important that intermediaries understand their function clearly and that they are not there to interfere with the substance of questions and answers. I recognise that, before Clause 28 is implemented, we need to spell these matters out clearly in guidance and training. I beg to move.
On Question, amendment agreed to.
Lord Williams of Mostyn moved Amendment No. 85A:
On Question, amendment agreed to.
Lord Rix moved Amendment No. 86:
The noble Lord said: In moving Amendment No. 86, I wish to say that the proposal in Clause 28 to introduce intermediaries is a bold step and one that I have no hesitation in recommending the Government to take. With proper training, an intermediary can enable a witness who would not otherwise have access to the justice system to come forward. It would also facilitate the production of quality evidence.
However, it is vital that the scheme is implemented carefully so that both the intermediary and the court can be assured that they are performing to standards consistent with the production of good evidence. This will take some very innovative thinking on the part of the Home Office.
Even parents of learning disabled sons and daughters--and I am one such parent--will find it difficult to know the limits of any assistance required in a courtroom situation. I view the training and the presentation of intermediaries as essential if such services are to be reliable, safe and in the best interest of vulnerable and often frightened people who may have limited skills with which to seek out their own independent support. These issues must be addressed through guidance, which is why I propose to add an additional subsection to the Bill.
I would like to make one further brief point on this clause. I notice that no account has been taken of the clause within the financial impact assessment which accompanies the Bill. Undoubtedly there will be financial implications in setting up the intermediary scheme properly. I am disappointed--indeed, amazed--that central funding has not been allocated for this purpose at any stage of a case. There can be little benefit in providing support for a witness in court if the intermediary is not given support at an earlier stage, including as regards the preparation of witness statements and ensuring that a witness is familiar with court procedures. I beg to move.
Lord Swinfen: I support this amendment purely because the intermediary who could be appointed to help someone with a mental disability may have no idea of a courtroom, or how the courts operate, or the proper procedure. They may not be all that well educated, and it would be helpful to the court if they had some training to enable the proceedings to proceed smoothly.
Lord Williams of Mostyn: I agree with the noble Lords, Lord Rix and Lord Swinfen, that training is required. That was why I indicated in the debate on the previous amendment that before Clause 28 is implemented there will need to be proper guidelines on how intermediaries are to perform their functions and on what qualifications and training will be required. That may be flexible. It may be that a speech therapist has expertise. In some cases it may be a relative of the witness. Therefore, the training and "qualifications" are likely to differ quite significantly as between someone who is a relative of the witness, who will probably never be called upon again in his or her lifetime to be an intermediary, and a speech therapist or someone qualified to deal with the partially sighted or those with poor hearing who may well do it on a regular basis.
I envisage that the guidance will set out a number of factors and criteria that the court may wish to consider when appointing an intermediary. But we believe that it is better to leave it to the court finally to exercise its discretion about whom to appoint. That is much more flexible, practical and helpful than prescriptive rules of court. Guidance would be more readily available to prospective intermediaries who would be unlikely to be legal professionals and might do it on a regular basis or might well not do it more than once. There is a degree of provision for intermediaries that falls within the existing court service allocations for expert witnesses, et cetera. That is intended to deal with the question raised about the financial memorandum. We need to be flexible to achieve the best practical outcome, and we believe that guidance rather than rules of court is the best way forward.
Lord Rix: It is getting late. I believe that at this time of the evening guidance is better than placing something on the face of the Bill. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 28, as amended, agreed to.
Clause 29 [Aids to communication]:
Lord Rix moved Amendment No. 88:
The noble Lord said: Currently, this clause stands alone and consists of a general warning to the jury against acting prejudicially towards the accused in cases where special measures have been granted. I impress upon those members of the Committee who are present the importance of incorporating an additional warning to the jury not to act prejudicially against a witness. I refer to the jury questioning the weight of a witness's evidence solely on the basis that he or she requires special measures in order to give evidence. Instances of prejudice and discrimination against people with learning disabilities are all too widespread in every sector of society. Therefore, it is unduly optimistic to believe that those prejudices will not be carried over into the courtroom by some members of the public when undertaking jury service. To add an extra warning is a necessary safeguard that should be backed up by the provision of awareness training for jurors who are involved in cases where special measures are to be employed. I beg to move.
Lord Williams of Mostyn: Judges normally only need to give a warning to the jury in order to avoid prejudice to the defendant. That warning might cover the inferences that a jury is entitled to draw from the evidence given or from the defendant's behaviour.
Clause 31 provides for a warning, where special measures are used, to the effect that the jury should draw no conclusions about the defendant from the fact that the special measure or measures has or have been used. We provide that because we recognise that the measures in the Bill constitute a significant change of culture for the jury as well as other participants. I do not think that it is necessary to go to the extent that the noble Lord does in the context of witnesses. The judge already has ample discretion to give directions to a jury about witnesses' competence or resolution. We have made that safeguard for the defendant because in a sense this is a change from what we had formerly and we want the defendant's position to be kept absolutely intact in its full integrity.
I do not think that we need the amendment for adequate instruction to be given on the status of evidence to a jury in respect of a witness.
Page 21, line 31, leave out ("and (if necessary) explain").
Page 21, line 35, at end insert--
("and to explain such questions or answers so far as necessary to enable them to be understood by the witness or person in question.").
Page 22, line 18, at end insert--
("( ) Rules of court may make provision for the appointment and appropriate training of an intermediary.").
Page 23, line 20, at end insert ("; or
(b) a statement made under section 30(1)").
10 p.m.
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