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Lord Cope of Berkeley: My Lords, I, too, support my noble friend's amendments. It seems to me that it might be possible to define physical disability so as to include deafness and sensory disability within that term. I accept that it is not generally regarded as within that term and that is, after all, crucial to the amendment. If it were within that term, there would be no need for Amendment No. 28 and, I suppose, Amendment No. 29. Nevertheless, there is no doubt that profoundly deaf people suffer from a disability which prevents them from giving evidence in the normal way.
Similarly, as my noble friend has said, it is absolutely useless to have a tape recording of sign language. It would not show anything. The video recording is essential in such cases, as drafted in Amendment No. 44.
Viscount Brentford: My Lords, I support this group of amendments. The impression I get is that errors may creep in with the sign language. The nearest analogy is that of the third umpire that one now has at important cricket matches; someone who can study a video of what actually took place and then give a clear impression of whether a person is out. On that kind of analogy, it seems to me that there should be a video recording so that people can subsequently make sure that what the witness has said has been correctly
interpreted by the court. While I appreciate the problems of not always having the recorders available, it is something towards which we should be aiming.
Lord Williams of Mostyn: My Lords, the Trials Issues Group looked at the difficulty of those who are deaf in court and the entitlement of deaf witnesses to a sign language interpreter is perfectly plain. The Bill does not affect that. That is by way of background.
My advice is that Clause 16(2)(b) covers deaf witnesses, including those who are deaf by virtue of neurological disability, a point raised by the noble Lords, Lord Swinfen and Lord Cope. The advice I have is that deaf witnesses are covered by Clause 16 (2)(b). I must underline that the guidance we propose to provide will make that abundantly clear.
If deaf witnesses have a problem in communicating they may have great difficulty in giving their evidence in the way they would wish. Distress can be considered as an effect of disability, which should be considered under Clause 16 rather than Clause 17. I repeat what I said in Committee. It is perfectly possible that applications for special measures can be made under both Clause 16 and Clause 17 and they can be granted under both. I repeat: the application needs to set out why the witness was eligible for special measures and what special measures were needed with reference to either or both Clauses 16 and 17.
Under Clause 17, the court may consider whatever factors it thinks are relevant. The clause sets out a list of factors which must be particularly taken into account, but it is not an exhaustive list. The court will consider the factors under Clause 17(2)(c) if they seem to be relevant. I therefore do not think that the first two amendments are needed.
As to the question of the video recording of sign language interpreting in court, increasingly, experience shows that the sign language interpreters are accredited. That is not a perfect answer because not all of them are, but I am told that most of them are accredited and those who are not are normally recommended to the court by those who are properly able to judge their competence. At present, the video recording of proceedings in court is contrary to Section 41 of the Criminal Justice Act 1925. It is covered by the general prohibition in Section 41.
What I can do, and what I am happy to do, is to say that I will consider--I am dealing now with Amendment No. 44 because it is rather different--the matter with the Lord Chancellor's Department. Whether it will have a view that is agreeable to the noble Lords, Lord Annaly and Lord Swinfen, who put forward the amendments--and did so very moderately--I do not know. I certainly undertake to look at that, perhaps get some indication of the extent of the problem, and see whether the Lord Chancellor's Department has a view, bearing in mind that it is essentially within the remit of the Lord Chancellor's Department rather than the Home Office as it concerns the conduct of a criminal trial.
Lord Swinfen: My Lords, before the noble Lord sits down, may I say that my understanding is that examination-in-chief can take place over a video recording. I am speaking now as a layman. I am not a lawyer. If I use a wrong expression I hope that the noble Lord will forgive me. I understand that with a vulnerable witness the video recording of the first interviews at the police station can be used in court as primary evidence.
I was suggesting that it is necessary to examine the sign language given by the profoundly deaf person at the police station, which may be accompanied by the signing of an interpreter who may have been engaged at short notice and therefore may not be perfect. The situation may become fairly heated and excited as the profoundly deaf person is asked awkward and sometimes most unpleasant questions. They may have been the victim of an assault and be still upset. It is essential that there is an opportunity to examine the very first signing which one can do with a verbal recording. But that cannot be done with a person who speaks through sign only. There is that aspect of the matter as well as the court aspect. I appreciate the noble Lord's view that at the moment it is illegal to video in a court room. I appreciate that the noble Lord will take up the matter with the noble and learned Lord the Lord Chancellor. The initial recording at the police station is as important--possibly even more so--than at court.
Lord Williams of Mostyn: My Lords, I appreciate that this is Report stage, but I believe that the noble Lord is entitled to a full response to that latter aspect of the matter. When I answered the noble Lord, Lord Annaly, recently, I was not simply saying that an audio recording would be of benefit to the person at the police station who was profoundly deaf. I underlined that the audio recording would be available and also a signed, written record. That was the second part of my answer, which the noble Lord may have forgotten. I was careful to do that. I take the point that technology is available and that one can have split-screen recording so that one has a view of the suspect or the questioned person's demeanour as well as of the actual signing. I shall certainly consider it with the Lord Chancellor's Department. I do not know whether we will come to a conclusion that is satisfactory to noble Lords who have urged this course. I shall certainly consider the matter carefully.
Lord Annaly: My Lords, I am very grateful to the Minister for his reply which offers hope. The noble Lord can do no more than talk to the Lord Chancellor and use his powers of persuasion. As regards Clause 16(2), the noble Lord said that he did not agree to the amendment. My concern is that the magistrate, judge and, if necessary, the jury may not perceive a perfectly normal, but deaf, person as a vulnerable witness. That is why I asked for that particular amendment to be included in the Bill. The noble Lord said that he would mention the matter in the notes for people to see. My suspicion is that when something is included in the small print people do not necessarily refer to it. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 17 [Witnesses eligible for assistance on grounds of fear or distress about testifying]:
Clause 18 [Special measures available to eligible witnesses]:
Lord Williams of Mostyn moved Amendment No. 30:
The noble Lord said: My Lords, in moving this amendment, I shall speak also to Amendments Nos. 115 to 119 and Amendments Nos. 121 and 124. We have laid these amendments relating to transitional provisions. The reason is that not every special measure is likely to be made available on the same date to every eligible witness in every court area, in the magistrates' courts as well as the Crown Court.
Implementation plans are being considered by the project groups established under the supervision of an inter-departmental steering group led by the Home Office. We are concerned to produce an integrated programme for all the 78 recommendations of the Speaking Up for Justice report. We are likely to have advice by the end of April.
We would not want to lead witnesses to believe that they could benefit from the new measures in Chapter 1 of Part II of the Bill, especially before a training strategy has been implemented, guidance has been produced and the necessary equipment is in place. It may be necessary to commence this chapter early to allow for pilot arrangements. I emphasise that no detailed decisions about timetables and approaches have yet been taken. We simply want to allow the maximum flexibility.
Therefore, until full implementation, there will be a continuing need to rely on existing provisions such as Sections 32 and 32A of the Criminal Justice Act 1991, which provide for video and live link evidence from children. There will be a continuing need to rely on the common law power of the court to arrange for such measures as taking off wigs and gowns; for screens, sign language interpreters and signboards. The amendments are essentially designed to ensure that in the earlier stages the new arrangements and the old are able to run side by side. They also provide for the situation where a notification that a measure is available to a court is withdrawn by the Secretary of State. The amendment provides that witnesses who had been awarded the measure through a special measures direction before the measure was withdrawn would still be able to benefit from them.
The amendments also provide that we can commence rule and order-making powers provided for by both parts of the Bill before commencement of the substantive provisions to which they relate. This is an administrative device but it should enable us to bring in measured and effective implementation of the substantive provisions in the Bill when their time comes. I beg to move.
On Question, amendment agreed to.
Clause 19 [Special measures direction relating to eligible witness]:
Page 14, line 9, at end insert--
("( ) The withdrawal of a notice under that subsection relating to a special measure shall not affect the availability of that measure in relation to a witness if a special measures direction providing for that measure to apply to the witness's evidence has been made by the court before the notice is withdrawn.").
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