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Lord Ackner moved Amendment No. 15:

Page 24, line 29, 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.").

The noble and learned Lord said: My Lords, Clause 33 is in absolute terms. It is as well to get it on the record straightaway. It is quite short. It states,

"No person charged with a sexual offence"--

I interpose to say it is not limited to rape, but any sexual offence--

"may in any criminal proceedings cross-examine in person a witness who is the complainant, either--

(a) in connection with that offence, or

(b) in connection with any other offence (of whatever nature) with which that person is charged in the proceedings".

All I seek to do is to add the proviso at the end which reads,

"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".

That is not injecting a discretion; that is requiring the judge to apply his mind to the facts and to reach a judgment as to whether it would be unfair to the defendant not to be at liberty so to cross-examine. If he reaches that decision, that is a judgment which can be appealed against, as was pointed out when this matter was discussed on the second day of Report.

The well known aphorism "hard cases make bad law" has been referred to recently in relation to the Lawrence Inquiry. There have been suggestions proposed of an unexpected kind and the initial willingness to adopt all that was in Lawrence has given way to a more careful evaluation and assessment because of the danger that hard cases make bad law.

The reason for this amendment has really arisen out of two high profile cases, both of which occurred some two years ago. One was the case of Ralston Edwards and that was followed, almost by infection, by Milton Brown. In those cases the defendant in person abused his right of cross-examination. This gave rise to the necessity for ground rules to be laid down by the Court of Appeal, which was done by the Court of Appeal, presided over by the Lord Chief Justice, in extensive terms. However, I think I need quote only this paragraph,

"Judges do not lack power to protect witnesses and control questioning. The trial judge is the master of proceedings in his court. He is not obliged to give an unrepresented defendant his head to ask whatever questions at whatever length the defendant wishes. In a case such as the present it will often be desirable before any question is asked by the defendant of the complainant in cross-examination for the trial judge to discuss the course of the proceedings with the defendant in the absence of the jury. The judge can then elicit the general nature of the defence and identify the specific points in the complainant's evidence with which the defendant takes issue and any points he wishes to put to her. If the defendant proposes to call witnesses in his own defence the substance of their evidence can be elicited so that the complainant's observations on it may, so far as relevant, be invited. It will almost always be desirable in the first instance to allow a defendant to put questions to a complainant but it should be made clear in advance that the defendant will be

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required, having put a point, to move on and if he fails to do so the judge should intervene and secure compliance. If the defendant proves unable or unwilling to comply with the judge's instructions the judge should if necessary, in order to save the complainant from avoidable distress, stop further questioning by the defendant or take over the questioning of the complainant himself. If the defendant seeks by his address, bearing, manner or questions to dominate, intimidate or humiliate the complainant, or if it is reasonably apprehended that he will seek to do so, the judge should not hesitate to order the erection of a screen in addition to controlling questioning in the way we have indicated".

So the matter has been put clearly and fully by the Court of Appeal as to the judge's powers. Interestingly enough, while the first case I referred to was followed by the second case in a copycat type of evolution, none has occurred since the decision in May last year which I have just quoted. Therefore there is no need to feel any present anxiety.

I am not at all satisfied--even though I am sure the noble Lord who is our in-house expert on European law will tell us the contrary--that the embargo which is placed on cross-examining by the defendant in person does not go contrary to the provisions of the European convention. There has been no direct decision on it in which our system, with its great emphasis and reliance on cross-examination--our adversarial system--has been tested. But be that as it were, I ask your Lordships to bear in mind the wise words of the late Lord Lowry, whose memorial service a number of us attended yesterday, when he said in the debate in 1998 on this subject,

"If Parliament introduces the proposed restriction it will be saying, 'You will no longer have a choice of ways of being defended. You must accept counsel even if you conduct your own case'. That statement would reduce the defendant's minimum rights in Article 6, paragraph 3. Even if we are not offending against the convention, why introduce a unique restriction in one type of case just because some trials, and in particular one trial, are not sufficiently controlled by the trial judge? Seminars with advice as to how to conduct a trial are at least as important as seminars on sentencing, and the problem can be easily taken care of".

I invite your Lordships to bear in mind that there may be a number of reasons why a defendant wishes to cross-examine in person. The majority of cases nowadays are what are known as "date rapes", which are allegations of rape between a complainant and a defendant who are husband and wife, or live together, or have known each other for years on intimate terms, and the like. It is by no means being idiosyncratic that the defendant insists on cross-examining. He knows the position intimately and his questions may be much more effective.

I ask your Lordships to take the view that this is an unnecessary, strong reaction to a couple of high-profile cases which have not repeated themselves. I beg to move.

6 p.m.

Earl Russell: My Lords, we had an excellent discussion of this issue in Committee, a discussion that was somewhat truncated by the hour on Report. There are good principles on both sides of this argument. In Committee, the noble and learned Lord, Lord Bingham of Cornhill, said that miscarriages of justice are to be prevented "at all costs". It was argued on the other side that there is a very considerable problem of access to

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justice. Even one case, let alone two, sufficiently highly publicised, as they have been, obviously has a deterrent effect on the bringing forward of complaints. I think it was the noble Baroness, Lady Kennedy of The Shaws, who said that it was a case of the interests of justice and access to justice.

We have to consider not only which of these is the more terrible thing. If that was the only question, then the line taken by the noble and learned Lord, Lord Ackner, might possibly prevail. We have to consider also which is the more probable. I am as yet very far from convinced that not being able to cross-examine in person is likely to diminish the accused's chances of acquittal. If members of the Criminal Bar believe that employing the services of a competently qualified advocate makes conviction more likely, then I believe they sell themselves short. The kind of person who might want to conduct his own defence is very likely also to be the kind of person who, by doing it in a clumsy and possibly provocative way, may make an unfortunate impression on the jury and may therefore make his conviction more likely. I am very far from convinced that it is in the interests of the accused to have this facility. Were I to accept the amendment of the noble and learned Lord, that is a point on which I would need to be convinced.

I listened with considerable care to what the noble and learned Lord said about cases where there is a previous relationship between the parties. In a sense--and only a sense--I will grant his point that in these cases the potential cross-examinant knows what happened. In any matter of this kind, recollection is selective. Each party will remember some part of what happened and have a convenient or comfortable amnesia on some of the others. There will also be an inevitable element both of amnesia and of recrimination in the cross-examination. I would be inclined to think that the cases that the noble and learned Lord invokes are precisely those in which the accused should be least encouraged to exercise any right of cross-examination.

Perhaps I may return to the precise words of the noble and learned Lord's amendment, which invokes cases where it is in the interests of justice for the accused to have this right. I cannot at present imagine the kind of case in which it would be in the interests of justice to give the accused this right. I hope that the noble and learned Lord, when he replies, will enlighten me.

Perhaps I may touch on a point made by the noble Baroness, Lady Mallalieu, in Committee.

Lord Ackner: My Lords, I am sorry to interrupt the noble Earl, but the words which I have used in the amendment are,

"that it would be unfair to the defendant not to be at liberty so to cross-examine".

Those words are taken from the current Act which deals with unfairness where evidence which the defendant seeks to put in on the prior sexual activity of the complainant is excluded. So it is a philosophy which is found elsewhere in the legislation on this subject.

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