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Lord Ackner: My Lords, a shiver always goes down one's spine when one knows that a previous judicial statement is going to be cited. It is always a relief when one finds that the judicial statement emanates from the Appellate Committee of your Lordships' House because, unless there was a minority, there are bound to be four other Law Lords to share the blame. I have merely done the work which they accepted.
I cannot understand the criticism that one should caution a jury to be particularly careful when one is dealing with men of bad character who have been sent, having been convicted of crime, to a special hospital because of their mental state. The amendment states that for the avoidance of doubt,
- "The judge must not warn the jury that it is unsafe".
- "to rely on the evidence of a witness on the ground",
Lord Williams of Mostyn: My Lords, since the Criminal Justice and Public Order Act 1994 and the judgment by the Court of Appeal in the case of Makanjuola in 1995, there is no absolute obligation on the judiciary to warn the jury that a witness is suspect or that the jury should be careful of relying on the evidence without some form of co-operation purely because the witness falls into a particular category.
The judge remains under a duty to ensure that the case for and against the defendant is put fairly and adequately. I agree with the thrust of the remarks made by the noble and learned Lord, Lord Ackner. If the judge finds some evidential basis for suggesting that the witness's evidence may be unreliable, it is the judge's duty to decide what he should say, in what terms, according to the situation of the witness in a particular trial.
The Bill redraws the law on competence. It provides special measures for certain witnesses, but I could not accept the proposition that no comment could be made in the circumstances described by the noble Lord, Lord Swinfen, and the noble and learned Lord, Lord Ackner. We should not constrain a judge summing up or a magistrate approaching a witness's evidence in that way.
When we talk about best quality evidence, we mean evidence that is as coherent as the witness, with such assistance as is appropriate, can give--evidence that is as complete and coherent as the witness can manage. If he needs help, so be it. That does not mean that the evidence of persons under a disability should have any more or less status than the status that would be attached if those persons were not in need of special measures. That still means that an untruthful witness is still
untruthful, even if assisted with special measures. A misguided witness in those circumstances may remain a misguided witness.One ought not to place an absolute prohibition on a judge coming to his conclusion as to what he ought to say about evidence that may be suspect. In this circumstance, recognising that this is a boomerang that will come back to strike me on the head later, we ought to leave it to the discretion of the judges in this particular defined circumstance.
Lord Swinfen: I shall read with considerable interest, as will my advisers, the Minister's remarks. This probing amendment is designed to make certain that patients in special hospitals are not automatically considered to be guilty and making a nuisance of themselves, but to ensure that they have a fair opportunity; that if they are mistreated, justice is done to them.
If their evidence in court appears dishonest to the judge, it will appear to be dishonest also to the jury. The judge has a right and duty to draw that fact to the jury's attention. But such witnesses should not be considered before they even stand to give evidence necessarily to be unreliable and not to be trusted. One has to see the evidence. As has been said before, the demeanour of the witness must also be seen. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 33 [Complainants in proceedings for sexual offences]:
Lord Thomas of Gresford had given notice of his intention to move Amendment No. 48:
The noble Lord said: My Lords, I can just imagine the tabloid headlines:
I do not propose to move Amendment No. 48 at this time. This is a matter which engaged your Lordships' House in Committee for well over an hour and a half some weeks ago. It is not appropriate for me to seek the opinion of the House at this late hour and with so few noble Lords present in the Chamber. Therefore, this is a matter to which I shall return on Third Reading.
Lord Ackner had given notice of his intention to move Amendment No. 49:
The noble and learned Lord said: My Lords, I adopt the same approach mutatis mutandis and, accordingly, will take up no time of the House.
Baroness Mallalieu had given notice of her intention to move Amendment No. 50:
The noble Baroness said: My Lords, for the same reasons, I propose not to move Amendment No. 50 tonight.
Clause 35 [Direction prohibiting accused from cross-examining particular witness]:
Clause 36 [Further provisions about directions under section 35]:
Clause 37 [Defence representation for purposes of cross-examination]:
[Amendments Nos. 54 and 55 not moved.]
Lord Hoyle: My Lords, I beg to move that further consideration on Report be now adjourned.
Moved accordingly, and, on Question, Motion agreed to.
Page 24, line 5, at beginning insert ("Without the leave of the court,").
"Gotcha! New Labour supports the discretion of the judges".
Indeed, that has to be a tabloid headline for tomorrow.
Page 24, line 10, at end insert--
("except with leave of the judge who shall give leave if, and only if, he is satisfied that it would be unfair to the defendant not to be at liberty so to cross-examine.").
Page 24, line 10, at end insert--
("( ) This section shall not come into force until the Secretary of State has certified that, in his opinion and in the light of experience gained after the passing of this Act, it is necessary to bring this section into force for the reasonable protection in criminal proceedings of witnesses who are complainants in sexual offences.").
House adjourned at fourteen minutes before ten o'clock.
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