Previous Section Back to Table of Contents Lords Hansard Home Page

Lord Renton: The Minister is suggesting that the person to be appointed on behalf of the accused is to be a friend of the court--in fact, an amicus curiae. But suppose the defendant strongly objects to anyone being appointed to represent him or his interests; what is the court then to do?

Lord Williams of Mostyn: He is not strictly an amicus, but even if he were, the amicus has, in many cases--the noble Lord and I know perfectly well--an important role to play. I go back to my earlier proposition which cannot be assailed. At the moment the unrepresented defendant cannot cross-examine child witnesses in a variety of cases. The evidence therefore goes untested or the judge or the magistrates carry out the cross-examination. I am saying that it is an improvement to have a lawyer who is nominated by the court to ask those questions. On the illustrations I have given, in some circumstances--I concede, not all--a perfectly useful cross-examination can be carried out. It is better than the present system.

Baroness Carnegy of Lour: Can the Minister help the Committee by telling us exactly how that will work? Will there be lawyers in the background, not listening to the case but available if required; or will they have to be sent for and come on a bicycle or whatever? Once the lawyer has arrived, will any adjournment mean a long delay? The noble Lord, Lord Thomas of Gresford, suggested that there would have to be an adjournment while the lawyer becomes apprised of the situation and what he has to do. I am wondering what the cost of that will be in court time, lawyers' fees, and so on. How will the mechanics work?

8 Feb 1999 : Column 24

4 p.m.

Lord Williams of Mostyn: The answer to the noble Baroness's question is contained in Clause 37, which states:

    "(2) Where it appears to the court that this section applies, it must--

    (a) invite the accused to arrange for a legal representative to act for him for the purpose of cross-examining the witness"
--that is one alternative--

    "(b) require the accused to notify the court, by the end of such period as it may specify, whether a legal representative is to act for him for that purpose".
The judge, in that class of case, will come to an early conclusion because he will know at the outset whether the relevant sections apply. If the case is difficult or intricate, he will obviously give the defendant a certain latitude in terms of time. If the case is perfectly simple, the defendant can reply quite quickly.

It is often possible to find an available lawyer in a court centre. One does not want to return to the days, which certainly I am ashamed to say that I remember, when we all sat in court, desperately looking the other way and hoping that we would not be the recipient of a dock brief for one or two guineas.

Subsection (3) states:

    "If by the end of the period mentioned in subsection (2)(b)"--
those are the two periods that I mentioned earlier in answer to the noble Baroness--

    "(a) the accused has notified the court that no legal representative is to act for him"--
or he has not made any notification, the court must consider whether it is necessary in the interests of justice for the witness to be cross-examined by a legal representative. Again, that period of time will be for the judge to determine bearing in mind a fair number of circumstances: first, the intricacy of the case; secondly, the nature of the evidence that the witness is likely to give (because there will be a witness statement to that effect); thirdly, whether any medical evidence needs to be taken on board; fourthly, whether any great reading of the depositions is needed; and fifthly, whether any alibi witness needs to be considered.

The judge will say--this is not difficult because judges come to these conclusions when deciding on adjournments at present--"One day is enough" or, "One week is sufficient," or that 28 days may be needed. Judges and magistrates do that constantly. It seems simple for the judge, the magistrate, the court, to conclude the appropriate length of time for a proper cross-examination.

The clause also points out that the advocate is testing the evidence against the accused in order to give him a fair trial and is doing so to the best of his ability in the circumstances which then obtain. I suggest that that means looking at the alibi notice, if there is one, and all the other documentation to which I referred. It is not difficult for the judge to come to that conclusion. I repeat that he performs such an exercise when talking about giving an adjournment for half a day, a day or a week.

Lord Ackner: I suggest to the Minister that the complicated situation which we have been discussing is the product of the total embargo on the defendant in person

8 Feb 1999 : Column 25

cross-examining. The judge will know, right from the beginning of the case, that the defendant is acting in person. Therefore, he can anticipate, when the time comes, that the defendant will seek to cross-examine in person. I suggest that an experienced judge, in the light of all our discussions, would adopt a procedure something like this: at the end of the opening of the prosecution case, the judge asks the jury to retire. He then says to the defendant in person, "In due course do you want to cross-examine the complainant?". The answer is, "Yes". The judge then says, "We have certain rules with which we have to comply and I think it would be convenient if you and I discussed the position now. What is the issue to which your cross-examination will be directed?" The defendant then answers, "She consented". The judge then says, "Tell me the circumstances in which you are going to suggest that she consented". As the judge and the defendant are on perfectly good terms, the judge is told that, and he achieves all the detail he requires.

Now we come to the position when the complainant has given her evidence in chief and the defendant rises to cross-examine. Without the blanket prohibition, the judge is in a position to see whether that cross- examination will be conducted properly, without hectoring or abusing the complainant. He discovers, as is the case from time to time, that the defendant carries out a perfectly polite, respectful and sometimes very effective, cross-examination and there is no problem.

However, the judge may find on the contrary that the defendant is abusing his position. He then sends out the jury and says to the defendant, "I've already told you about the rules we have. Now, let's get this quite clear. We'll go back into open court and if you don't adhere to what I have told you, I shall stop your cross- examination and I shall put your case to the jury myself, as you've explained it to me". They go back into open court and either the defendant has learnt to behave himself, or he has not, in which case the judge carries out the cross-examination, having explained to the jury that he is adopting that course because the defendant will not comply with his instructions.

That is a very uncomplicated position in relation to a situation which is not likely to happen frequently. I suggest that that is what the Lord Chief Justice has well in mind in the case of R v. Brown; and it is what the judiciary supports throughout. The present situation (of trying to foist on to a difficult defendant legal representation which he will refuse) does not arise and the danger of an unjust conviction or an unjust acquittal, to which the Lord Chief Justice has referred more than once, again does not arise. I respectfully suggest that perhaps the Minister might reflect at greater length on what I have said between now and Report.

Lord Williams of Mostyn: I have to disagree with the noble and learned Lord, Lord Ackner. These provisions in part are intended not to deal simply with the nature of cross-examination. The noble Viscount, Lord Brentford, gave as an example someone who is terrified at the prospect of being asked questions by the alleged stalker or an elderly woman who is terrified at being asked questions by a notoriously bullying thug. It is the prospect of that experience, not the particular

8 Feb 1999 : Column 26

questions, which may bring about the vice that we are addressing. There is no need to wait until the prosecution has finished opening the case. The directions can typically be given at a plea and directions hearing, before the jury is empanelled, to ensure the efficient and effective conduct of the case.

The noble and learned Lord said that the questioning by the advocate would be "foisted" on the defendant. I respectfully repeat the present position. If, in the child witness cases, there is a blanket refusal to allow the unrepresented defendant to cross-examine in person--and there is--the only present alternatives are: no cross-examination at all (in other words, no testing of the evidence), or the judge himself "foists"--I use the noble and learned Lord's word--his cross-examination on the defendant. The defendant has no right to stop that. The judge is in charge of the court and the case.

We are offering an improvement on the present system so that if a defendant wishes he may have legal representation for the forbidden in-person cross- examination. He can do all the rest of the cross-examination and the conduct of the case himself. If he will not appoint a lawyer himself for the otherwise forbidden cross-examination, the court will appoint a lawyer. I do not see any difficulty about that. However, as always, I shall pay careful attention to everything that Members of the Committee have said and in particular to the words addressed to me most recently by the noble and learned Lord, Lord Ackner.

Next Section Back to Table of Contents Lords Hansard Home Page