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Lord Swinfen moved Amendment No. 31:
The noble Lord said: My Lords, this amendment is a redraft of an amendment introduced at Committee stage to ensure that special measures are not ruled out by judges unless there are good grounds to do so. As currently drafted, special measures can be rejected on the rather loose grounds that they might tend to inhibit the evidence. The Minister warned of the need for a balancing act between protecting the witness and allowing the court discretion in such matters. That is why he did not support the earlier amendment which he considered went too far in favour of the witness. I hope that this redrafting of the amendment will be a compromise solution sustaining the balancing act that the Minister is so keen to safeguard. I believe that the amendment strengthens the verification conditions of the clause creating a slightly stronger burden of proof in line with the test on the balance of probabilities without denying the court discretion in such matters. I beg to move.
Lord Williams of Mostyn: My Lords, I am sorry that I cannot accept the amendment. The courts have to ensure that the witnesses' evidence is properly examined and that they do not set up obstacles to its being challenged by a party to the proceedings. That is why we believe that we have got the balance right in Clause 19(3)(b) which provides,
The phrase introduced in the amendment, "would be likely to inhibit", would require the court to decide whether it is likely, on the balance of probabilities, that a measure would inhibit a witness's evidence being tested. If it considered, for example, that there was a one in three chance that it might be inhibited--a substantial risk, but still more unlikely than likely--then, if it followed the test strictly, it should award the measure.
"Might tend to inhibit" would allow the court to refuse measures where there is a real risk of inhibition but the risk is not so high that it is more likely than unlikely. "Tend to" caters for a more general interpretation of inhibition in the context of the wider circumstances of the case.
We have doubts as to whether this amendment would be capable of being upheld because of the conflict with Article 6 of the European Convention on Human Rights, whereby everyone charged with a criminal offence has the right to have witnesses against him examined, and to have those who are called on his behalf examined under the same conditions. That is a point that I include in the
Lord Swinfen: My Lords, this is possibly a matter of six of one and half a dozen of the other. The language is very close. But language tends, and is likely, to change over the years. However, I thank the Minister for the trouble that he has taken in replying. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 20 [Further provisions about directions: general]:
Viscount Astor moved Amendment No. 32:
The noble Viscount said: My Lords, this amendment is the first of a group of amendments concerning the press. Amendment No. 33 allows the news media to see witnesses.
We understand that witnesses may need to be protected and screened from either the accused or the public, or both. However, it is important that under exceptional circumstances, when for some reason the news media are also to be screened, the court should have to say why. Otherwise, we run the risk of courts taking, as it were, the easy route and automatically excluding everyone.
If the news media are not present (this point relates to a later amendment) there is always lopsided reporting. The amendment asks the Government to explain the reasoning behind this clause. There has been great concern in the press about the Bill, as the Minister is aware. There is a strong case for the onus to be put on the courts to explain their decisions. I beg to move.
Lord Williams of Mostyn: My Lords, Part II of the Bill has two main aims: to encourage witnesses to come to court to give evidence and to help those who need it to give their evidence when they get there. Clause 19(4) already provides that any special measures direction must specify particulars of the provision made in respect of each special measure which is to apply. The amendments seek to alter that position by imposing an obligation on the court to justify any special measure which restricts the media's ability to see what is going on and to give specific permission to restrict the media's view. We do not think that is necessary.
I do not believe that it is essential for the media to have an unrestricted view of a witness giving evidence if that is impossible in practice; and I do not believe that the interests of open justice require that the court should have to give reasons to the media why special measures have been awarded if their effect is to restrict that view.
The reasons are clear enough. The court will only be able to award the special measures described in Chapter I of the Bill if the witness needs them to give best quality evidence. The court will have to give its reasons
I agree that where possible the media should be able to see witnesses as well as hear their evidence and report it; but I do not believe that it should be a critical factor in the court's decision to award such measures. After all, the measures are there in order to obtain the best evidence from witnesses and to help the witnesses who are giving evidence by reducing the feeling of being simply on public show or in a public debate while they talk about matters which they may feel will place them in danger or about which they find it extremely difficult to talk, even to those who are closest to them.
The measures are all designed so that witnesses can be watched while they are giving evidence by the judge or magistrate, the jury, and a legal representative, so that the evidence can be properly challenged by the parties to the case. If in some circumstances the media, particularly in older courtrooms, simply cannot see the witness, they can hear the evidence. If the evidence is given by live link or video they can see that also.
Perhaps I should say a word or two generally. The noble Viscount, Lord Astor, is right. Some of his concerns will be more fully ventilated when we debate amendments to Clause 24. In Committee, I promised your Lordships that I would meet representatives of the media as fully as they wanted. I and my officials have met them. We are still having discussions, which I hope are open-minded on both sides, about how we safeguard the genuine public interest in having media reports of court cases. I shall speak to some amendments later this evening. I am simply touching on the amendments to Clause 24 to indicate that we take the rights of a free press in a civil society extremely importantly.
I believe that there are sufficient safeguards in the Bill as presently drafted. Therefore, I cannot on behalf of the Government accept Amendments Nos. 32 to 34.
Viscount Astor: My Lords, I am grateful for the Minister's considered reply. However, I do not find it entirely satisfactory. The Minister rightly raises the issues of a live link, so that the media can see, and of old courtrooms and the difficulties that exist where the press are unable to see, possibly as a result of seating arrangements. I accept that point.
However, where that is the case, and I suspect that it will be the case with regard to witnesses in a minority of cases, it seems reasonable to ask the court to explain its reasons. That is all that the amendment seeks to do. It does not in any way force the court to screen or unscreen. It does not force the court to do anything. It merely says that where the court is decided on an action, it must give its reasons. That is not unreasonable.
I accept the other points made by the Minister. However, the press--certainly the Guild of Editors and other members of the press to whom I have talked--have all made the point that the onus should be on the
On Question, Whether the said amendment (No. 32) shall be agreed to?
Their Lordships divided: Contents, 80; Not-Contents, 105.
Page 15, line 4, leave out ("might tend") and insert ("would be likely").
"whether the measure or measures might tend to inhibit such evidence being effectively tested by a party to the proceedings".
If the court has any doubts about whether it will be possible to test a witness's evidence adequately if the evidence is going to be given with a special measure, which may sometimes be difficult, the court should not award the measure. I believe that conflicts will be rare. Special measures are designed to improve the quality of a witness's evidence. They are not designed to prevent the evidence that the witness gives from being challenged.
Page 15, line 44, at end insert--
("( ) In particular, the court must state in open court its reasons for any special measures direction which restricts the ability of representation of the news media to observe fully all the proceedings of the court.").
6.59 p.m.
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