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Lord Cope of Berkeley: My Lords, before the Minister sits down, will he address the point made by the noble Viscount that a signpost in the terms of the amendment might be helpful in this respect? The Minister reproduced almost exactly the letter he wrote to the noble Viscount, for which we are all grateful, but that did not address the idea that a signpost within these terms would be helpful. Without altering the substance of the law, it would nevertheless make it easier for people to refer to it and to manage it.

Lord Williams of Mostyn: My Lords, I did respond to that point because I said twice that it was our intention to provide clear published guidance when we have Royal Assent. It seems to me that that clear guidance would be of assistance in the circumstances that the noble Viscount described.

Viscount Colville of Culross: My Lords, I am very unhappy about this. The Minister may well wish to issue guidance, but guidance does not have the force of statute. A court looking at this now very wide-ranging proposition that there should be video evidence in all kinds of wholly deserving circumstances will find that it is confronted by two tests. There is the test in Clause 26(2) and (3) and there is the one in the Police and Criminal Evidence Act. The noble Lord is quite right. There are two in that Act. They are in Sections 78 and 82(3). Unless we say on the face of the statute that these are either the same or are different--and if so, in what way they are different--the courts are bound to try to find a difference between them. They will say that if Parliament says that there are two separate exercises of discretion, Parliament must have intended that there should be two separate exercises and not the same one. If Lord Justice Phillips is right and there is no material difference between the two, what has happened is this: when the whole exercise of introducing children's evidence on video was put into the law in 1991 it was thought wise by the draftsman at the time to make special provisions, which are now repeated in the Bill. That was because it was new and no one was quite sure how it would work. No doubt that was a wise thing to do. It has now been working for some years.

We now have what I should have thought is a fairly firm decision by the Divisional Court that really there is no difference. I wonder why the Government now wish

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to perpetuate the distinction that appeared in 1991 when it probably is not necessary. All it will do is to confuse. However much guidance may be given, the only guidance that will be of any use is that there is no difference between the two tests. If that is the guidance that will be given, I cannot see why we have to have two tests in the first place.

I shall not press the matter today. I want to ask the noble Lord, Lord Williams, to look carefully at this case. I am sure he will do so because he always follows up these matters with the greatest care and courtesy. However, I think we have reached the stage where what used to be Section 32A(2) and (3) of the 1988 Act as inserted in 1991 has had its day and that we should now simplify matters and get rid of it. We will then go back to the simple test with which everyone is familiar and on which, as he said, there is a great deal of accumulated case law. I hope that the noble Lord will look at this carefully again. He nods his head. I am sure that is a genuine promise. I believe that we are liable to get into a great deal of litigation and trouble unless this is sorted out. Frankly, guidance will not do. For the moment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 27 [Video recorded cross-examination or re-examination]:

Viscount Colville of Culross moved Amendment No. 41:

Page 20, line 31, leave out ("the") and insert ("such a").

The noble Viscount said: My Lords, this amendment is directed to a different point. In a moment I shall listen carefully to what the noble Lord, Lord Thomas, has to say when he moves to leave out the whole clause. However, assuming that the clause stays in, I shall put a proposition to the noble Lord, Lord Williams, in relation to the place that I have marked down by this amendment.

I envisage that the original material for video-recorded evidence will be taken at an interview, probably with the police and perhaps other appropriate persons present. It will then be available to be looked at by the parties, and in due course by the court. There will be a stage at which a decision has to be taken, probably by the prosecution, that this material is to be used in court, if leave is given, as the evidence-in-chief of that witness. There is likely to be a long period of time before a decision can be taken as to whether the cross-examination and re-examination also shall be by way of video recording because of the problem that was discussed previously in this connection that one has to go through the whole of the process in the Criminal Procedure and Investigations Act before full disclosure takes place and the defence is in a position to cross-examine.

In this amendment I am suggesting that instead of the special measures direction dealing at the same time with the admission of the evidence-in-chief and also the cross-examination, it would be more sensible to provide that those should be dealt with separately and one after the other, as the second one arises, if it does. The Bill as drafted indicates that one would have to take the

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decision about cross-examination at the time when the initial decision about accepting the evidence-in-chief by way of video recording is taken. I cannot believe that that is sufficiently flexible. I am not entirely certain that that is what the Government intend. But if they do, I think it is impracticable. I beg to move.

8.45 p.m.

Lord Williams of Mostyn: My Lords, I understand the purpose of the noble Viscount's amendment to allow courts to direct that there should be a video recorded cross-examination after they have directed that video recorded evidence-in-chief should be admitted. That is already possible under Clause 27 as currently drafted.

Clause 27 requires a provision for cross-examination to be recorded on video to be included in the same direction as the direction that admits video-recorded evidence-in-chief. This could be when the direction to admit video-recorded evidence-in-chief is first made or by way of an amendment to the first direction at a later stage. The intention behind this is to ensure that a video recording of the witness being cross-examined will be shown at trial only if the court has admitted a video recording of the evidence-in-chief.

Unless the video evidence-in-chief has been admitted, a direction for video recorded cross-examination could be pointless. The court might decide not to admit a video recording at all and direct that the witness should give evidence-in-chief live at trial, or it might decide to edit some of the questions and answers in evidence-in-chief.

It could be impractical for a party to cross-examine without knowing what would be in the final tape of the evidence-in-chief. The clause does not exclude the possibility that the court could indicate to either of the parties making an application that, on the assumption that a video recording of the evidence-in-chief will be admissible, the parties can plan for video-recorded evidence-in-chief and for video recorded cross- examination as well.

By making the direction for the cross-examination contingent on the admission of the recording of the evidence-in-chief, the court reserves the right to wait until it has approved the video recording of the evidence-in-chief before confirming the direction for video-recorded cross-examination.

There may be some cases where a party wishes to apply, first, for video-recorded evidence-in-chief to be admitted, and later to come back to the court and apply for a video-recorded cross-examination--perhaps after discussion with the other party or if a witness's circumstances change. In those cases, if the court wished to direct that video-recorded cross-examination should take place, it would simply amend the original direction. That would be the situation both under the clause as it currently stands and, I suggest, if it were amended as indicated in the amendment. I do not think that the amendment would improve matters. I hope my explanation may help.

Viscount Colville of Culross: My Lords, it may not improve matters, but it clarifies them. It does not seem

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to me that what the noble Lord, Lord Williams, has said is immediately apparent in the text of the Bill as it stands. It appears that the decision on both matters has to be taken at the same time. I am sure that that is impracticable, as I have said. However, if the noble Lord says that the Bill is to be interpreted on the basis that there can be a new application after it has been determined that the case is ready and that the defence wishes to carry out cross-examination on the video link and that the original special measures direction can be amended accordingly, then I would be content. That is a matter that could properly go in the guidance. However, I am a little disappointed that such a modest amendment which has, as the noble Lord said, precisely the effect that I hoped it would have is still not acceptable to the Government. I cannot see why. I shall not pursue the matter and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Viscount Colville of Culross moved Amendment No. 42.

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