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Lord Thomas of Gresford: We submit that special measures should be used only if their use does not compromise the defendant's right to a fair trial and they are genuinely useful in helping to maximise the quality of the witness's evidence, where that quality would otherwise be compromised because of age, fear, vulnerability or disability or where protection of identity is otherwise exceptionally necessary. It is simply not the case that all witnesses in weapons cases will fulfil these criteria.
Where special measures will not help to maximise the quality of a witness's evidence, they should not be used. First, special measures can have a prejudicial impact on the defendant's trial by suggesting, for example, that he is a person to be feared. I can assure your Lordships that, if witnesses appear to be so fearful that they have to peep from behind curtains, that is prejudicial to the defendant and cannot be wholly cured by a direction to the jury from the judge. Secondly, we are concerned that special measures could impair the quality of evidence if used in inappropriate cases in relation to defendants who are under 18 or who have mental health problems or learning disabilities. There are grounds for particular concern since the defendant may be very young or vulnerable to a similar or even greater degree than the witnesses.
Decisions as to special measures should depend not on the witness's wishes but on the interests of justice. For that reason, we suggest that this clause be removed from the Bill. Without it, special measures would continue to be available under the normal criteria of the Youth Justice and Criminal Evidence Act 1999. These criteria are sufficient to provide for special measures in appropriate cases. For these reasons, we oppose the clause standing part of the Bill.
Lord Tunnicliffe: The provisions in Clause 86 form part of the Government's strategy to tackle gun and knife crime, which tends to see high levels of witness intimidation. The aim is for this provision to give witnesses to such crimes reassurance at an early stage in the investigation that they will be eligible for special measures assistance should that be needed to give evidence in court. In turn, we hope that this will encourage more witnesses to these offences to come forward. Eligible witnesses are able to opt out should they not require special measures assistance.
While the Bill makes eligibility for special measures automatic for the class of witness, the court will continue to have full discretion to determine which special measures, if any, should be available to any particular witness. In determining this, the court must consider which, if any, of the measures would be likely to improve the quality of evidence given by the witness and whether the measures might inhibit the evidence being effectively tested. It is unlikely that a court would decide that certain witnesses needed the assistance of special measures to improve the quality. Essentially, the court will have the test of whether it might inhibit the evidence being effectively tested.
Clause 87 amends the existing legislation by creating one rule for all child witnesses and by providing greater flexibility in the way in which young witnesses may give their evidence. This responds to concerns that the present provisions are too rigid and do not give young witnesses any choice about the way in which they give their evidence. The clause abolishes the distinction between child witnesses in cases involving sex or violence and child witnesses to other types of offence. It provides a presumption that all child witnesses, regardless of the type of offence, will give their evidence via video-recorded statement and live link, unless this would not maximise the quality of their evidence. However, it also provides that the witness may opt out of giving evidence this way, wholly or in part, subject to the agreement of the court. If child witnesses wish to give evidence in the courtroom, there is a presumption that they will do so behind a screen. Should witnesses not wish to use a screen, they will have a further opportunity to opt out, again subject to the agreement of the court.
We are committed to helping vulnerable child witnesses to give evidence in the best way possible for them in court, in a way that reduces the trauma of the experience and enables them to give their evidence. The current system, established by the Youth Justice and Criminal Evidence Act 1999, is based on the view that all children should be protected from giving evidence in the courtroom, particularly witnesses to offences of sex and violence. Thus, at present, child witnesses in these cases, regardless of their views, must give their evidence in chief via video-recorded statement and live link, unless to do so would not be in the interests of justice.
However, these provisions have been criticised for their complexity and inflexibility. After six years, independent research shows that many young witnesses want more choice in the way in which they give their evidence. This view was supported by a review of child evidence that led to a public consultation exercise in 2007. The vast majority of respondents to that exercise
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Lord Thomas of Gresford: It is my fault that I did not address Clause 87 earlier, but perhaps I may make one or two points about it. Section 17 of the Youth Justice and Criminal Evidence Act at the moment provides that a witness is eligible for assistance if the court is satisfied that the quality of the witness's evidence would be reduced on the grounds of fear or distress about testifying. The court takes into account a number of factors as well as the views expressed by the witness. Clause 87 gives automatic eligibility for assistance to witnesses in proceedings relating to gun and knife crimes as set out in the schedule, so that it ceases to be a matter for the discretion of the court altogether. There is automatic protection, not because a person is in fear or distress but because of the nature of the crime before the court.
We consider it imperative that, as far as possible, special measures be left to the discretion of the court to determine on a case-by-case basis, because it is undoubtedly true-and it is my personal experience-that once the jury sees a witness screened off with their voice distorted, it will assume that the defendant is a dangerous criminal capable of serious violence. Special measures should not therefore be used automatically, as Clause 87 suggests. It should be for the court to weigh the prejudice occasioned by the manner in which the evidence is given against the need, if there is a need-the fear and distress of the witness-to protect the witness. It is a question of balance, not of automatic qualification for these measures. It would have an impact on the whole concept of a fair trial if, without any request, a witness should be automatically granted these provisions. That is why I am opposed to Clause 87. I know that the Minister has already dealt with it in his reply-I apologise for that-but I was taking it in stages.
Baroness Butler-Sloss: Perhaps I may say something about Clause 87 from the perspective of a former family judge. My own experience, and that of those who have represented children-particularly child and adolescent psychiatrists, who have had to help children who are likely to have to give evidence-has been that most children are extremely scared about giving evidence in court. The younger the child, the more scared they are, but anyone up to the age of 18 is intensely vulnerable. This seems to be one area of the Bill on which the Government are to be congratulated and I for one would like to see the clause go through.
Lord Tunnicliffe: I thank the noble and learned Baroness for her support. I should re-emphasise the role of the court. There is a distinction. Eligibility is automatic, but the court must still determine whether a special measure would be likely to improve the quality of evidence, which is the essential test to be applied in all cases.
Lord Henley: Perhaps the Minister will deal with a couple of queries. As he is well aware, Clause 91 deals with the examination of the accused through an intermediary, but we have questions about the situations in which this will be deemed to be appropriate. Where a defendant's level of intellectual ability or social functioning is so compromised that he is unable to understand and respond to questions asked in language appropriate to his age by a prosecutor, defence lawyer or the court, it is very unlikely that he will be able to participate effectively in his trial for the purposes of the trial being fair according to Article 6 of the ECHR. In these circumstances, he should not be on trial at all, but should be diverted to an appropriate alternative process, whether through fitness to plead or some alternative procedure.
If the defendant is unable to have a broad understanding of the nature of the trial process, or to have the "effective participation" in his own trial as was demanded in the judgment in the 2004 case of SC v United Kingdom, which includes an understanding of the significance of any penalty that may be imposed, the presence of an intermediary is unlikely to be a remedy. I welcome the Government's comments on that.
Another concern is that the intermediary may not be wholly independent of the defendant and may risk giving evidence on his own account when he ought simply to be transmitting the information going to and from the defendant. These concerns have been brought to our attention by, among others, the Law Society and Justice. As I made clear, our opposition to the clause is purely probing in nature at this stage, but we seek assurances from the Government on the two points raised. If what the Minister says is unsatisfactory, we might want to come back to the matter at a later stage.
Lord Tunnicliffe: I think that the noble Lord, Lord Henley, and I were expecting the amendment to the clause to be moved, so if noble Lords will forgive me, I shall use my overall notes suitably amended.
Clause 91 enables the court to permit eligible vulnerable defendants to be assisted by an intermediary to communicate and understand if and when they give oral evidence at trial. Intermediaries are already available to assist vulnerable witnesses under Section 29 of the Youth Justice and Criminal Evidence Act 1999.
The 2005 ECHR judgment in the case of SC held that, when there was a risk of a defendant's being unableto participate effectively in criminal proceedings because ofyouth or "limited intellectual capacity", it was "essential"that the courts,
Crown Courts already have inherent powers to permit a vulnerable defendant to use an intermediary when giving their oral evidence if it is necessary to ensure that they receive a fair trial. This clause puts this power on a statutory footing and extends the availability of intermediaries to vulnerable defendants in magistrates' courts.
An intermediary's role is limited to assisting the witness to communicate and understand. They can therefore communicate to the witness questions asked by the court, the defence and the prosecution. They can also communicate the answers that the witness gives. The intermediary may also explain questions and answers if it is necessary to enable the witness and the court to understand each other.
Intermediaries are independent of the defendant. Their paramount duty is to provide a service to the court. They are not on the side of either the prosecution or the defence; they are neutral and take an oath to the court to perform their services faithfully, as a translator of a foreign language would. The court may also discharge such a direction and, as a safeguard, may vary one where this is necessary. The Government intend that this clause will assist those defendants who genuinely have severe recognised communication problems to give their evidence and thus ensure that they receive a fair trial.
The questions of whether the defendant is fit to plead and the use of an intermediary are two separate issues. The tests that the court is asked to apply in each case are different. In the case of fitness to plead, the common law test is more stringent and about a defendant's capacity to comprehend the course of the proceedings so as to make a proper defence. The law enables the defence or prosecution to make a claim to the court that the defendant is unfit to plead. This is a matter for them to decide. If such a claim is made, the judge will determine this only in the light of evidence from medical practitioners, at least one of whom must have special experience in the diagnosis or treatment of mental disorder. A separate application by the defence for an intermediary will instead be relevant if a contested trial is to proceed and the defendant intends to give evidence and requires assistance with communication for this purpose.
It does not follow that, when an intermediary is needed in the interests of a fair trial, a defendant should not be tried at all. While I understand the concerns that have prompted the amendment, it would be wrong in principle to restrict the ability of the defence to apply for an intermediary for a defendant by making it a condition that fitness to plead must be determined first. This would be an inappropriate and unnecessary restriction on the defence, particularly
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Following this order would have the additional benefit that the evidence of specialist medical practitioners as to the defendant's fitness to plead might also address whether, if the trial were to go ahead, that defendant had communication problems for which an intermediary might be required. However, in the interests of the accused, the court may postpone the issue of fitness to plead to any time up to the end of the prosecution case. The issue of fitness may be raised by the defence, prosecution or court itself. This provides for the necessary flexibility to accommodate circumstances when-for example, due to the nature of the disability-it may not be appropriate to determine the question from the outset. In the light of this explanation, I hope that the noble Lord will support the clause.
Lord Thomas of Gresford: We do support the clause. I have had the experience of defending a person who was absolutely deaf and could not speak-so was the deceased and so were four or five of the witnesses, which meant that most of the trial was conducted in sign language. It was astonishing to me that those who were signing could communicate more quickly than in ordinary speech, so the interpreters of the sign language, who were telling the jury what was being said, were unable to keep up. The use of intermediaries in such a situation is very much in the interests of a defendant and I am pleased to see that this clause contains something giving statutory approbation to it.
Lord Henley: I am very grateful, as always, to the Minister for his response to my opposition to the clause standing part of the Bill. As I stressed at the beginning, my opposition was purely probing. I want to consider very carefully in due course-we have the whole summer in which to do it-what he had to say. I will also consider comments from bodies such as the Law Society and Justice on what he said and then decide whether further examination of this clause is necessary at Report.
Lord Thomas of Gresford: Clause 93 seeks to remove the requirement of the consent of an accused person before a live link is used at preliminary and sentencing hearings. Chapter 4 amends the Crime and Disorder Act 1998 in relation to the use of live video links. The greatest concern is this clause, which systematically replaces the existing requirements in that Act that the accused must give his or her consent to the use of a live link at preliminary hearings and sentencing hearings.
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The requirement that the accused consents to live link directions is an important safeguard against potential abuse. The physical appearance of the accused in court at pre-trial and sentencing hearings is a prerequisite for the effective exercise of rights under Articles 3, 5 and 6. By the accused appearing in court, the court may see first hand whether the accused has been subject to any abuse of any sort. Clause 93(4) of the Bill provides that the accused may continue from a preliminary hearing by live link directly to a live link sentencing hearing-for example, when he or she pleads guilty-at the direction of the court, so that the accused may never have the opportunity to present himself or herself in court. That increases the risk, however minimal it might be perceived, that an abused prisoner might be induced to plead guilty.
I apologise to your Lordships for referring always to experience, but it is only at the beginning of this year that I had a situation in which a client who was kept in prison suffered from a very bad back injury and was unable to attend the court at any time. That caused problems from the defence point of view-problems in getting into the prison to see him and problems on the day of the hearings in getting proper instructions. Your Lordships may well take it from me that live links are not always working. It is difficult, if something emerges in the course of a hearing, to take any instructions about it. Therefore, to impose a live link on a defendant when he does not want it is, in my respectful submission, a breach of his right to a fair hearing. If, on the other hand, as happened in January of this year, the defendant is unwilling to go to court because of physical injury, that is a different matter. His consent to the hearing is something that he can give. To remove that consent altogether is not appropriate, which is why we oppose the clause standing part.
Lord Bach: At present, consent is required for the use of a live link for certain sorts of hearing, while it is not required for others. It is difficult to justify this inconsistency. A live link hearing ought to be treated much like any other hearing.
Everyone is aware of the need for increased efficiency in the justice system. We believe that the increased use of live links that this clause provides for will enable cases to be progressed more quickly and ensure the best use of available resources and technology. Crucially, the quality of justice will not be affected by these changes: live link hearings will take place under the same rules and guidelines as usual, and the defendant will have access to all existing legal safeguards.
Live links now have a history. They were first introduced in the Crime and Disorder Act 1998 and were subsequently amended in the Police and Justice Act 2006, which also extended live links to cover certain sentencing hearings.
The current situation, as I say, is inconsistent in that defendants already in prison cannot veto the use of live links for their preliminary hearings, but they can veto the continued use of a live link for sentencing if they plead guilty during the preliminary hearing. Such defendants must give separate consent if they are to give oral evidence at this sentencing hearing. The defendant's consent is also necessary where he has been convicted and is to be sentenced at a live link hearing from prison called for this purpose. Again he must also give separate consent if he is to give oral evidence at that hearing.
In virtual court hearings where the defendant is at the police station, either having been detained there or having returned there to answer what is described as "live link bail", the defendant's consent to the live link is required. These police station-to-court live links are a new initiative-indeed, an oral Question about them was asked in the House just a couple of weeks ago-and are being operated, as noble Lords may know, as a pilot in four London police stations. As of 3 July, 23 cases have been heard that way. There has been an average of four hours between charge and first hearing, and approximately 75 per cent of cases heard so far have resulted in a guilty plea and sentence, meaning that the cases have been concluded on the day of charge, demonstrating the potential of virtual courts to speed up justice for all those involved. That, of course, includes defendants too.
The clause will remove the requirement for defendants' consent to live links in the following situations: first, preliminary hearings where the defendant is at a police station-virtual courts-and hearings to sentence the defendant where he has pleaded guilty during that virtual court hearing; secondly, hearings to sentence the defendant where the defendant is in prison and has pleaded guilty during the preceding live link preliminary hearing; and, thirdly, hearings arranged for the purpose of sentencing a defendant already in custody. In those last two situations the clause also abolishes the requirement that a defendant give separate consent if he is to give oral evidence during these types of hearings.
The safeguard in the clause adds a requirement that a live link direction is not to be given in any of these circumstances unless the court is satisfied that it is not contrary to the interests of justice to give the live link direction, and, importantly, a court can rescind a live link direction at any time for the same reason. In practice, this will mean that a court will take into account a defendant's view on the use of a live link, or any particular needs he may have that renders the use of a live link unsuitable.
It hardly needs saying that these changes have enormous potential to increase the speed, efficiency and effectiveness of our criminal justice system without affecting the quality of justice. This will, we hope, deliver a better deal for victims and witnesses as cases will be resolved more quickly; a better deal for the taxpayer, as precious resources will be used more efficiently; and a better deal for the defendant himself or herself, as their case will be progressed more quickly.
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