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

3.7 p.m.

Lord Williams of Mostyn: My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved, That the House do now again resolve itself into Committee.--(Lord Williams of Mostyn.)

On Question, Motion agreed to.

House in Committee accordingly.


Clause 34 [Child complainants and other child witnesses]:

[Amendments Nos. 95 to 100 had been withdrawn from the Marshalled List.]

Clause 34 agreed to.

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[Amendment No. 101 had been withdrawn from the Marshalled List.]

Clause 35 [Direction prohibiting accused from cross-examining particular witness]:

[Amendments Nos. 102 to 107 had been withdrawn from the Marshalled List.]

On Question, Whether Clause 35 shall stand part of the Bill?

Lord Ackner: I invite the Committee to say that Clause 35 should not stand part of the Bill. The clause deals with directions prohibiting the accused from cross-examining witnesses of no particularly identified kind. It is common ground that child witnesses merit special provision. In Clause 33, the Government--in the teeth of judicial opposition--have concluded that in rape cases there should be an absolute bar on the accused personally asking questions. It was always thought that if that kind of clause was introduced it would soon be followed by a more general provision that gave similar power but inevitably involved the discretion of the judiciary, since otherwise it would be quite impossible to support it. I submit that the Government are over-egging the pudding. Having achieved in Clause 33 an absolute bar in rape cases, the temptation to extend this further should be resisted.

It was strongly contended by those who opposed Clause 33 that there was no evidence of any demand for that provision. Since May 1997 there have been no cases in which complainants have been abused or hectored and in which the courts have had to intervene to exercise the powers that the Lord Chief Justice identified in the case of Brown. There is even less evidence to suggest that this generalised provision should be on the statute book, which would no doubt bring with it quite unnecessary complications and delays. I beg to move.

Lord Thomas of Gresford: Special provisions may be required in cases involving sexual offences and children, but there is no case for extending similar provisions, although discretionary, to a vague, broad area of the criminal law such as that provided for in this and the next clause. My objection is to the whole cumbersome machinery laid down by this clause. If one considers this and the succeeding clause, the two pages that encompass these provisions boil down to one sentence: defendants who act in person must not abuse their position. If they do so the judge should intervene.

I believe that a judge in a criminal case is in charge of his court and that the Committee should support him, not seek to impose statutory obligations upon him as if to seek to legislate for every possible circumstance that may arise. Criminal cases vary very considerably in their circumstances from one to another, and the only person who is capable of coming to a fair and just decision at any particular point in a case is the judge who hears it. He is apprised of all the facts, understands the state of the case and the point at which it has arrived and, in the light of that, can properly exercise his discretion. Should he be wrong and a defendant is convicted in those circumstances, there is an appeal procedure so that the exercise of that discretion--it is

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not interfered with very often--may be reviewed by a higher court. But the more one seeks to introduce these statutory fetlocks around judicial discretion the greater the risk that miscarriages of justice will occur. For those reasons I support the opposition to this clause moved by the noble and learned Lord, Lord Ackner.

3.15 p.m.

Lord Cope of Berkeley: I am also sympathetic to the opposition to this clause and the one that follows it. The noble and learned Lord said that he was unaware of any evidence of the need for provisions of this kind in cases other than rape and serious sexual assault, which are dealt with elsewhere. We dealt with those matters on the previous Committee day. I should like to give the Minister the opportunity to put before the Committee the evidence that this clause is necessary. Can he suggest how many cases have arisen in which the quality of evidence has been seriously diminished by the fact that the cross-examination of witnesses has been conducted by the accused? In asking that question I am conscious that no doubt lawyers initially will be inclined to believe that any cross-examination by them is better than that conducted by the accused and, that the quality of cross-examination, and hence presumably the quality of the evidence, will be better. I have some sympathy with that view, which may not necessarily be only the professional lawyer's view. But if the quality will always be diminished by the accused's cross- examination of a witness in comparison with cross-examination by a lawyer the clause looks a little peculiar.

I am also unclear as to the kind of cases envisaged in this provision. We are not dealing with rape and other serious sexual offences as set out in the previous clause and dealt with elsewhere. Presumably, we are dealing with burglary, assault and other offences of that kind. It appears to me and to others such as the Law Society that the cross-examination of witnesses in those cases is less likely to lead to difficulties. But the wording of the test in the clause appears to be questionable. The word "diminished" is entirely unqualified. The quality of the evidence does not have to be diminished seriously. It can be diminished by a very small amount. If so, it is diminished. It does not have to be likely to be seriously diminished but simply a little bit degraded from what it would otherwise have been.

Later one sees,

    "that it would not be contrary to the interests of justice".
That is also a rather weak and negative test. The judge does not have to consider that it is in the interests of justice but simply that it is not contrary to the interests of justice to prohibit the accused from otherwise exercising his normal rights.

Slightly further on the definition of the quality of the evidence that may or may not be diminished brings in Clause 16(5) which makes reference to completeness, coherence and accuracy. In order to judge that one must make a judgment as to how the witness will react to being cross-examined by the accused as opposed to counsel. That is a difficult judgment to make at any time. Given that the degree of diminishment of the

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quality of the evidence to trigger this provision can be only very small, I believe that the wording is rather dangerous and that these detailed points strengthen the overall case made by the noble and learned Lord, Lord Ackner, and by the noble Lord, Lord Thomas of Gresford.

Lord Renton: I agree with those noble Lords who have complained about the apparent attempt to direct the court as to how to exercise its discretion. If subsection (2) of Clause 35 were left alone I believe that all would be well. However, subsection (3) lists half a dozen matters that the court must bear in mind when exercising its discretion. However, other matters may arise which may also be relevant. To have the clause applying to the way in which these difficult cases are to be handled is wrong. If subsection (3) were left out it would help very much.

Lord Williams of Mostyn: First, I shall deal with the observations of the noble Lord, Lord Renton. As I understand it, he is content with the broad scheme of subsection (2) but is troubled about the possible constraints on judicial discretion in subsection (3). I think that I fairly paraphrase.

One needs to bear in mind that all judicial discretion is to a certain extent circumscribed whether by statutory or appellate directions or indications. In this context the provisions in subsection (3) are not exclusive. I take the noble Lord's point entirely. In other words, he says quite rightly, there may also be other matters. I agree. That is why subsection (3) is cast in its present form. It states:

    "In determining whether subsection (2)(a) applies in the case of a witness the court must have regard"--
I underline these words--

    "in particular"--
making it quite plain that there are other matters which could legitimately, indeed properly, be taken into account when the judge comes to his conclusion. I hope that I have been able to reassure the noble Lord.

On the general matters, the noble and learned Lord, Lord Ackner, is, I think, against this provision as a matter of fundamental approach. The noble Lord, Lord Thomas of Gresford, says that there is no serious objection in principle; it is simply a cumbersome way of dealing with matters. The noble Lord rightly says that if a judge gives a direction which is so significantly unjust in the interests of the defendant as to cause the conviction to be rendered unsafe--again I paraphrase, but I think fairly--the appeal could be allowed. That is so. But that does not cater for the position where the witness is so vulnerable to cross-examination personally by the defendant that the evidence given is not the best evidence available. There is no appeal in those circumstances.

We believe that there are some cases--I shall come to the illustrations which the noble Lord, Lord Cope of Berkeley, wanted me to give--where Clauses 33 and 34 do not apply. We have traversed those at some length. They are cases in which the witness may be more likely to give his or her best evidence if cross-examined by someone other than the accused. We believe that the

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interests of justice are best served by putting good quality evidence before the courts. By "good quality" I seek to convey evidence in terms of coherence, completeness and accuracy. To strive for the best evidence is not to bring about injustice. Quite the opposite.

The sort of offences one might have in mind would be stalking, prolonged personal harassment or abuse with someone who may be genuinely vulnerable. For instance, if one has abuse or harassment on a continuing basis against--shall we say--an elderly person living alone, his best evidence may not be given if the alleged perpetrator is cross-examining. That is a category of case. But one does not simply have to consider a category of case. One needs to look at categories of witnesses. I give one illustration. There may be witnesses who could be particularly vulnerable to the defendant in person cross-examining. That vulnerability may well bring about not the best available evidence but evidence which simply conceals or obscures the truth rather than revealing it. It may well be a witness, for instance, with a learning disability. All we are doing in Clause 35--it is simply an empowerment of the judiciary; I stress that--is to give the court power either on an application or of its own motion, respectively subsection (1)(a) and (1)(b), to prohibit an unrepresented defendant from cross-examining witnesses in those cases which are not already covered in Clauses 33 and 34.

But there are constraints here. By subsection (2) the direction can be given only if it appears to the court,

    "that the quality of evidence given by the witness on cross-examination is likely to be diminished if the cross-examination ... is conducted by the accused in person"--
no judge will regard a de minimis diminution as a foundation for his jurisdiction here--

we have the overarch--

    "would be likely to be improved if a direction were given under this section"--
and the further overarch--

    "and that it would not be contrary to the interests of justice to give such a direction".
So what one is doing is to give to the judge at trial a discretion. It is a wide discretion.

I reiterate, if I may, the points I made in answer to the noble Lord, Lord Renton. Subsection (3) simply points the court's mind to certain features. They are not exclusive features. The judge has to carry out the balancing exercise which all judges do every day when they rule on admissibility of evidence, for instance. It gives the judge the discretion to take into account in particular the aspects covered in subsection (3)(a) to (f) inclusive but also any others that may be relevant.

Subsections (2) and (3) set out the criteria. The prohibition is to prevent the defendant's personal cross-examination. He will be able to have cross-examination, of course, through a legal representative. We do not believe that that is either contrary to the interests of justice or breaches any European convention right. It is not on the basis that all

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lawyers cross-examine better than all defendants. It is simply a desire, which I believe to be long overdue, to make sure that witnesses in these vulnerable cases will be able to give the best evidence. If the best evidence leads to a proper conviction, that is a just outcome. If a failure to acquire in court on oath the best evidence leads to a wrongful acquittal, that is not justice. It is unjust. I suggest that it is one of those injustices which sometimes leads to the disenchantment and alienation of the public.

I repeat, if I may, because it is important, that the court must be satisfied that nothing in the circumstances of a particular case would make such a ban contrary to the interests of justice. The criteria are set out. I do not think that it is helpful to the Committee to recite them again. I give the reference: page 25, subsection (3)(a) to (f). We believe that these provisions--they will not be used every day in every court--should be available for the judges to exercise their discretion on what I stress remains a judicial basis.

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