§ 4.28 p.m.
§ House again in Committee.
§ Clauses 35 and 36 agreed to.
§ Clause 37 [Sexual offenders]:
§ Baroness Faithfull had given notice of her intention to move Amendment No. 80:
Page 25, line 18, at end insert:
("(1A) A court shall not make a direction under paragraph (b) of subsection (1) above unless it does so for the purpose of extending the period during which the offender is required to participate in treatment or therapy designed to reduce the likelihood of further sexual offences.").
§ The noble Baroness said: This amendment was discussed earlier in the debate. It is therefore not moved.
§ [Amendment No. 80 not moved.]
§ Clause 37 agreed to.
§ Clauses 38 to 44 agreed to.
§ Schedule 5 [Notices of transfer: procedure in lieu of committal]:
§ Lord Mottistone moved Amendment No. 81:
Page 76, line 38, at end insert:
("(5A) Sub-paragraph (5) above shall not have the effect in a case involving a child witness as defined in section 44(6) of this Act.").
§ The noble Lord said: This is a small probing amendment. It is an amendment together with all those up to and including Amendment No. 90 in my name On which I have been advised by the NSPCC and the Children's Legal Centre. Some of the principal advice has come from one or other of those bodies, and I do not propose to delay the Committee by identifying which at any particular time.
§ Amendment No. 81 seeks to clarify the position of a child witness in cases where an application has been made for a dismissal as provided for in paragraph 5 of Schedule 5. As the paragraph stands, it appears that a child witness could be required to give oral evidence under sub-paragraph (5) of the paragraph.
§ Although the provision is likely to be very little used, it seems contrary to the spirit of Part III of the Bill, and indeed of the Bill as a whole. Part III is very much about recognising the needs of vulnerable child witnesses and of meeting those needs, not only for the benefit of the child but for the benefit of a court in that a child who is properly handled is more likely to give evidence of value to the court. So it would seem unfortunate if the situation as described in Schedule 5 were to come about.
§ I should be most grateful if my noble friend the Minister can clarify whether I have interpreted this aright and, if not, what the situation is as he sees it. Perhaps he can say whether he considers that the amendment might be usefully accepted, not necessarily in its present form but achieving a similar purpose. I beg to move.
§ Lord Hutchinson of Lullington
Clause 44 and Schedule 5 set out a mechanism whereby the Director of Public Prosecutions may direct that committal proceedings can be bypassed. It gives him the unappealable and unilateral power to issue such a direction to the relevant magistrates' court, and he may choose the place where the trial shall be held.
The evidence against the accused person at that stage will consist either of an unsworn statement by the child or a video recording made to a police officer or, to use the words of the clause, to some other adult. The schedule sets out a procedure for an accused person to apply to have the case dismissed before arraignment by submitting to the Crown Court judge that there is not sufficient evidence on which the person should be committed. If the judge considers—these are the vital words—that the interest of justice requires any oral evidence to be given to assist him to make that decision, he can order any witness to attend for that purpose. If the person fails to attend, the judge may disregard the written or the video evidence which, in his view, is evidence which is so equivocal that he would find it impossible to decide at that stage whether the case ought to be dismissed or not.
This provision replaces the safeguard of committal proceedings, which can be a very important safeguard indeed for the citizen, in the normal process. Committal proceedings entitle an accused person to test the prosecution evidence, to establish its inadequacy, its irrelevance, its unreliability, its admissibility, or indeed often its dishonesty, thereby saving an enormous amount of expense and trauma to 34 the accused. It can also be used to clarify and pin down witnesses to facts and not to opinions or to inadmissible evidence.
This provision applies not only to the alleged victim but to any witness in the proceedings who is a child. Therefore, the amendment would effectively remove the only safeguard which is left for the accused person at that stage. Under the Bill—it is important to appreciate where we have put an accused person—the evidence against that person will not have been given on oath. It will not have been given before a magistrate, nor will it have been subject to cross-examination. There will have been no committal proceedings enabling him to dispute the evidence. A video recording will have been taken in his absence before someone who is not a judicial officer. That is the position. To deprive that person further by means of this amendment might lead to great injustice.
Perhaps I may give a simple example. Let us suppose that it appears on the statement of the child that there is a real doubt as to whether the child is referring to the person who has been charged. Let us suppose that the evidence is equivocal on that absolutely central point in the case. If this amendment were passed the judge would be unable to ask for the child to appear in order to clear up the problem and for him to make up his mind whether there is a proper prima facie case in which the child identifies the person who has been charged, or whether the child is or may be referring to somebody else. Such a situation is totally central to the whole matter.
The amendment would make the situation very dangerous indeed. I shall certainly resist it.
§ Lady Kinloss
I support the amendment. As Schedule 5 stands a child can be called in to give oral evidence to a judge in chambers which means that the child would have to give evidence twice. Although the provision is likely to be very little used, surely it is contrary to the spirit of Part III of the Bill which, as the noble Lord, Lord Mottistone, said, very much concerns recognising the needs of vulnerable child witnesses.
My noble friend has drawn attention to what is arguably a small but not insignificant loophole in the Bill. He rightly said that the whole thrust of the Pigot clause is to minimise the need for child witnesses to make courtroom appearances and so, on the face of it, there is a potential anomaly in Schedule 5.
Under the procedure in lieu of committal in Schedule 5 to the Bill, the judge must not order a child witness to be called to give oral evidence unless he is satisfied that it would be in the interests of justice. It is not easy to foresee the circumstances in which those interests would require it, given the prevailing attitude that child witnesses should be spared courtroom appearances and the existence of a video recording of the child's evidence which the judge can view. It is also relevant that, if the committal proceedings had taken place, by virtue of Section 103 of the Magistrates' Court Act 1980 the child could not have been required to give oral evidence at those proceedings.
35 I do not imagine that the situation would arise very often, but I agree that the possibility, remote though it may be, should not exist at all. I am at present examining ways in which the loophole identified by my noble friend might effectively be closed, with the intention of bringing forward an amendment at Report stage.
The noble Lord, Lord Hutchinson, was afraid that the amendment would remove the only safeguard for the accused. Under the Bill the committal proceedings will be bypassed only where the Director of Public Prosecutions is satisfied that there is sufficient evidence to justify committal for trial if a violent or sexual offence has been committed against a child or has been witnessed by a child and the Director of Public Prosecutions is of the view that the case should go to the Crown Court and be proceeded with without delay. The safeguard, which is set out in detail in Schedule 5 of the Bill, is that the defence can apply to the Crown Court judge for the case to be dismissed if it believes that there is insufficient evidence.
Judge Pigot's group considered, and we agree, that, in cases which involve children, existing committal procedures are irredeemably flawed. They enable defendants to subject child witnesses to all of the burdens of delay, appearance in open court and face-to-face confrontation with the accused. In that respect they seek to frustrate the very objectives which the Bill seeks to achieve.
I am grateful to my noble friend for putting down the amendment. As I said, I am considering whether we can effectively close the loophole to which my noble friend has drawn attention.
§ Lord Mottistone
I am grateful to my noble friend the Minister for his encouraging remarks and for the fact that he recognises that there is a loophole. I shall look forward to an amendment from him at a later stage of the Bill. At this stage I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Schedule 5 agreed to
§ Clause 45 [Video recordings of testimony from child witnesses]:
§ 4.45 p.m.
§ Lord Mottistone moved Amendment No. 82:
Page 29, line 35, at end insert:
("() In any proceeding under subsection (1)—
§ The noble Lord said: In moving Amendment No. 82 I should like to speak also to Amendments Nos. 83 and 84, which are consequential upon it.
Clause 45 of the Bill makes video recordings of the testimony of child witnesses admissible but only where the child is available for cross-examination at a trial if required. The Bill does not make provision for cross-examination to be carried out at a pre-trial hearing. The report of the Advisory Group on Video Evidence, generally referred to as the Pigot Report, recommended that child witnesses:
ought never to be required to appear in public as witnesses in the Crown Court".
It also suggested that the prosecution should be able as of right to apply for a child witness to be examined and cross-examined at a pre-trial out-of-court hearing which would be video recorded and later shown to the trial jury. The report also recommended that the prosecution should always be guided by the child's own wishes in deciding whether to apply for a child to give evidence in that way.
§ In those cases where further cross-examination of the child witness after the pre-trial hearing was deemed necessary the Pigot Committee envisaged such cross-examination taking place at a further out-of-court hearing. The Government have expressed concern that such an arrangement might lead to repeated recalls of child witnesses and to practical problems in ensuring that the same judge presided over all aspects of the trial.
§ The amendments seek to bring about an arrangement which would embody the spirit of the Pigot Committee's recommendations while taking into account the practical difficulties which might arise if the possibility of cross-examining child witnesses at trial were removed altogether. It makes provision for the hearing of evidence in chief and cross-examination to take place at a pre-trial hearing. At the same time it makes provision for cross-examination at trial in those cases where evidence comes to light after the pre-trial hearing which in the opinion of the court could have a significant bearing on the outcome of the case.
§ Amendment No. 82 would enable all children to be cross-examined immediately after giving evidence in chief, when events are generally clearer in their minds than at a later stage, and would prevent children being called to give evidence at a trial unnecessarily. It would also allow for those cases in which the interests of justice would be served by further cross-examination of the child during the trial.
§ At present the recall of child witnesses after cross-examination has taken place seems to be rare. Provision allowing for cross-examination to take place at an out-of-court hearing need not increase the number of such recalls provided they are allowed only for the purpose of examining new evidence which could potentially have significant effect on the outcome of the case.
§ My amendments would provide a framework within which judges would be enabled to exercise appropriate vigilance in ensuring that child witnesses are not recalled unnecessarily. Within that framework many children could be spared the ordeal of giving 37 evidence during a trial while the degree of flexibility necessary to provide practical means of ensuring a fair hearing in all cases would be retained.
§ In addition to the NSPCC and the children's legal body I have also received a letter of support from the President of the Royal College of Psychiatrists, who makes some of the points that I have just mentioned. The Committee may be interested in the additional points that he made. It is pointed out that a child's recall of events has been shown to be much more full and accurate at an early stage after the crime and in sympathetic surroundings than at the trial some months later. Furthermore, the need to appear in open court, with its great disadvantages for children in terms of further psychological trauma and their inability to help the court and provide full evidence, can be reduced.
§ In summary, not only is it important, as the Pigot Committee made so clear, that the child should be spared the trauma and that the child's evidence is of value to justice in the widest sense, but, if there has to be a long delay, a very young child or one who has been brought up in sheltered surroundings may easily forget what has happened or invent things that might have happened but which did not happen. Not only are we seeking to protect the child in such cases but we are trying to ensure that justice is improved. That is an important factor that needs to be considered at all times. I beg to move.
§ Lord Renton
This is an amendment which should be very seriously considered by my noble friend on the Front Bench. As we are in effect embarking upon a new and important development in criminal procedure we need to make quite sure that we get it right. The idea that the evidence of the child should be taken by video and not in the presence of the public at large is one that should be given very serious consideration. It is a principle of natural justice that all trials should be conducted publicly; but here we should acknowledge that there should be a justifiable exception to that general rule of natural justice.
For the most part, I feel sympathetic at the moment—naturally, I want to hear what my noble friend on the Front Bench has to say—to what is proposed, but with one exception. It is unthinkable to me that we should include paragraph (c) in Amendment No. 82, because that would in effect give the child a veto on whether his or her evidence should be called. I must remind the Committee that when, for example, evidence is taken abroad on commission or is given in a deposition or—more rarely in a criminal case—by affidavit, the person who has given such evidence, whatever the manner in which it is given, has no right to say, "I do not want my evidence used at the trial". It is unthinkable to me that we should allow a child of immature years, who may have valuable evidence on which the result of the trial can depend, in effect a veto.
The only other point that I wish to add is that I very much agree with Amendment No. 83. I do not think that we should leave out subsection (5) on page 30, as proposed by my noble friend Lord Mottistone. I do not think that the Government have that quite right. Certainly, looked at in its rather bare bones method of 38 expression, it does not read at all well. I shall quote from the beginning of the subsection to paragraph (b), which is not quite right:Where a video recording is admitted under this section…that witness shall not be examined in chief on any matter which, in the opinion of the court, has been dealt with in his recorded testimony".If we are to have that provision, there should be a reference to the evidence being dealt with adequately because it may have been dealt with in a cursory manner.
§ Lord Mottistone
I think that my noble friend is talking about Amendment No. 84, although he has told me that he is talking about Amendment No. 83. I missed a great deal of what he said because I was trying to find my way about.
§ Lord Renton
I am so sorry. I thought that I was dealing with Amendment No. 83, but it is Amendment No. 84. I am much obliged. I seek the Committee's pardon.
It is quite right to leave out those lines, but the mistake to which I referred has, alas, been repeated in the alternative phraseology proposed in Amendment No. 84. The words,has already been dealt with in his recorded testimony",do not go far enough. It is essential that the matter should be dealt with adequately, and the word "adequately" should therefore be inserted, both in Amendment No. 84 and in the words which it is proposed should be left out.
This is not an easy issue. We are breaking new ground. However, a constructive way of dealing with the matter has been proposed which we should consider carefully and sympathetically, subject to those two matters which I find difficult.
§ Lord Campbell of Alloway
Perhaps I may briefly support my noble friend Lord Renton when he says that neither the Bill as it stands nor the proposed amendment has the matter quite right. We are breaking new ground, and further and earnest consideration should be given to the subject. To save time, I support without qualification everything that my noble friend Lord Renton said about the veto. However, I am also worried about another aspect of the amendment. It seems wrong that, in a jury trial, evidence at the trial should not be heard before the jury. As I understand it, the amendment would preclude that.
§ Lady Kinloss
I should like to speak to Amendment Nos. 82, 83 and 84. As I said on Second Reading, and as the noble Lord, Lord Mottistone, has already said, the Pigot Report recommended that child witnessesought never to be required to appear in public as witnesses in the Crown courtand suggested that the prosecution should be able, as of right, to apply for the child witness to be examined and cross-examined at a pre-trial, out-of-court hearing which would be video-recorded and later shown to the trial jury. The amendments have been put down in recognition of how traumatic it is for a child to appear in open court and the number of cases 39 that collapse because the child witness has broken down. That is a huge waste of public money; not only that, but justice is not done.
§ Lord Hutchinson of Lullington
I should like to echo the approach of the noble Lord, Lord Renton, and I emphasise that we are breaking new ground, and that it is essential to get this matter right. It is an extremely difficult area and I am sure that the Committee will not grudge any time spent now because the amendment is of great importance.
I am unable to support the amendment, although I sympathise wholly with the feelings behind it. I say that not as an old dinosaur of a lawyer, but as someone who has wrestled with the problem of how to achieve justice in child abuse cases or cases in which children give evidence within our adversarial system, both as an advocate and as a judge over a great many years; indeed, many years before Miss Esther Rantzen hit our television screens.
All judges have prejudices. My prejudice centred on the abuse of children. I found it extremely hard to forgive anyone whose sexual feelings were aroused by contact with children for taking on work which involved positions of trust in relation to children. Before sentencing persons who betrayed such trust, I would often adjourn a case until the next day in order to ensure that a calm and detached disposal was arrived at. In earlier years, as an advocate, I made it a special point to attend juvenile courts in many capacities, starting with, as some of the older Members of the Committee may remember, the juvenile court at Toynbee Hall, presided over by Basil Henriques, who was a very remarkable man. I learnt a great deal there. It is impossible to do justice in many of those cases because young children's evidence is so often simply not open to the normal tests of veracity or reliability. Yet child abuse quite rightly arouses such feelings of condemnation that jury trial is of paramount importance in those cases.
I have often asked a child witness—I hope in the most gentle way—whether he or she understands what it means to tell the truth, and whether he or she understands what telling a lie means. The child will solemnly say, "Yes". I then say to the child, "When you said what happened happened because of Mr. X, you were telling a lie, weren't you?". In many cases the child will answer, "Yes". In those circumstances, why is that so? The child may say that because it wants to agree with the person asking the question; it may be said through fear or lack of comprehension, or it may be said because it is true. It is incredibly difficult to know which of those reasons is the one giving rise to that very simple answer. That makes it impossible for a judge to allow the case to go any further on the basis that the case has to be proved beyond reasonable doubt. But no one in the court would feel my cross-examination showed that the child was a liar. It would merely mean that the child's evidence was not reliable according to our system.
I have always taken the view that every conceivable effort should be made in an abuse case to divert it from court and not deal with it in the adversarial atmosphere of a criminal trial. Of course where the 40 offence is a horrible one, the matter has to go to court. However, in many cases more harm is done by taking the case to court than trying to deal with it out of court. I know that the noble Baroness, Lady Faithfull, has in the past had enormous success in taking that particular course. I wish that the more strident members of the child abuse lobby (if I may call them that) would put more effort into trying to find some way of not bringing such a matter to court than arousing a great deal of fuss about what happens in court.
It seems to me to be extraordinary that people say children do not fantasise. Anyone who has brought up children knows that they do fantasise; it is part of their fascination and absorption in fairy tales, nonsense poems and so on. Children not only fantasise, but sometimes lie. They often do so for a thousand different reasons which adults find difficult to understand. But lie they do. They often tell the truth. It is very difficult to find out which it is. There are the gravest difficulties in ensuring justice is achieved.
I must point out to some of those who have put their names to this amendment and to others that in the criminal courts it is the interests of justice not the interests of the child which are paramount. In considering the present amendment, I do not know whether the Committee appreciates the work which has to be done when a charge of child abuse is made. Maybe the defendant is a father, a teacher or whatever, and says to his legal representative that the allegation is simply not true. That is the end of it so far as he is concerned if he is innocent. Consequently, every channel has to be explored. First, is the evidence of abuse clear? Is it the evidence of other children? What is the background? Has somebody put them up to it? Is there any motive for doing so? Is there scientific, forensic evidence and, if so, does it require an expert to analyse it? Secondly, is it possible that somebody else has done it and, if so, who could it be? Could it be a babysitter, another member of the family, a visitor, or another member of staff in the school? Thirdly, is there a motive for putting the blame on the accused? For instance, one sometimes hears a rumour that the babysitter is the lover of the mother, that the headmaster is a homosexual, or that a brother of the child concerned has interfered with someone else's child. Has the child been coached? Is the child in fear of someone? All of those possibilities may arise. As an advocate, one may reach the trial with hard evidence or one may get it only by the most careful and persistent questioning of other witnesses in the case, particularly if they are children.
It is wholly unrealistic to think that justice can be done by any representative of an accused person to cross-examine a child witness weeks or months before the trial takes place. The advocate has a professional duty to put the whole of his case to the witness at the time of his cross-examination. He must not hold back things for later speech or cross-examination. It would be quite impossible months before a trial for someone appearing in these dire circumstances to put the whole case to a child witness. If I may say so, the Government was quite right to say in the other place that the amendment would mean repeated recalls of 41 the child witness as the trial went along. In addition, after a long cross-examination by an advocate in those circumstances the accused might plead guilty at the trial, in which case the whole cross-examination would have been pointless and the child put through trauma to no purpose. Supposing a number of children were giving evidence in the same case (as so often happens), how could the answer by one child then be put to another without that other child being recalled and the others being recalled in due course when certain further children gave evidence? I suggest that the idea of cross-examining all of them weeks or months before the trial is wholly impracticable. The amendment is well-meant, but I suggest it will simply result in possible injustice and probably add further trauma to the child in the end.
Referring to Amendment No. 84, what it amounts to is that there should be no cross-examination of the child in front of the jury except when new evidence is tendered. Suppose new information becomes available to the defence. It cannot be limited to just new evidence. It would be on the basis of new information which comes in which may not in itself be evidence at all. Indeed, information may come during the trial and not at earlier stage. I do not know what the words, "already been dealt with" mean. If the child says, "That was the person who abused me", has that "been dealt with"? Can one not suggest that it was somebody else? Is that a matter which has already been dealt with? The child may say, "I was not coached to give my evidence". If it appears during the trial that clearly the chili has been coached, as appeared in the Orkney case (all the things in that case being precisely the sorts of matters one feared might happen), is that a matter which has "already been dealt with"? Is one not able to suggest that the child was coached? Again, it does not seem to me to be a very practical situation, although it is a situation which should have all our sympathies.
§ 5.15 p.m.
§ Baroness Faithfull
I rise to support my noble friend Lord Mottistone. Like the noble Lord, Lord Hutchinson, I too wish that we could prevent such cases coming to court. I must tell the Committee that in all the 18 years that I was a children's officer and then a director of social services, only one case came to court. I personally always saw the alleged abuser, the child and the mother. I shall not go into the way in which I dealt with the matter. However, I would always hope that, if possible and practicable, we could keep such cases out of court. But that is not always possible.
My noble friend Lord Renton said that we were breaking new ground and so we are. Cases have multiplied—or have come to light. They were always going on. We simply did not know about them. When the Cleveland situation broke I had an enormous number of calls from people involved in previous cases of children who had been in care whom I had taken before the courts for juvenile delinquency. They were now women of 35 or 40. They rang up and said, "We never told you that our real problem was that we were 42 abused in our home". I asked, "Why did you not tell me?" They replied that it was not done in those days ever to talk of it. Such cases have been going on.
I shall not rehearse the arguments which were so clearly put by previous speakers supporting the amendments. Perhaps I may mention a few further points which may be quite distasteful to some members of the Bar. As has been stated, Amendment No. 82 makes provision for cross-examination at a pre-trial hearing in protected surroundings. Present at a pre-trial hearing would be the judge, counsel for the defence, counsel for the prosecution and of course the child. It is envisaged that the alleged abuser would be in an adjoining room behind double glass so that he could see the proceedings but the child could not see him. The alleged abuser could hear the proceedings by means of an auditory receiver by which he could communicate and hear his counsel for the defence.
I know that that is a most extraordinary recommendation to make and that it is unacceptable to many people. But in a different context the method is used in both health and education. A video would be made of the proceedings with the permission of the judge and presented to the court. My noble friend Lord Campbell of Alloway made the point that the jury must hear the evidence. The jury would see the video recording of the cross-examination. I know that some members of the Bar react with instant aversion to the new procedure supplied by this amendment. I understand their anxiety. Over many years they have been used to employing the adversarial system before the jury. That has been their stock in trade and they can envisage no other method.
I hesitate to disagree with the noble Lord, Lord Hutchinson, because he is so good at coming back at me. However, research has shown that so long as it is as near as possible to the event, young children do not lie. I have with me details of an extraordinary case. I shall not read it out to the Committee because it is four pages long. In the case of a child called Susie, the court ordered that a video deposition conducted 61 months later was not so detailed or realistic as an earlier interview. The nearer to the event, the more truth the child tells. Further away from the event, the child becomes confused and muddled. Therefore it is in the interests not only of the child but also of the accused, the alleged abuser, to ensure that as soon as possible the pre-trial hearing takes place. One then is much more likely to discover the truth.
It is only in the past few years that we have had so many child abuse cases before the courts. I repeat that new, strange cases demand a new court structure to deal with them. I should point out that some years ago the Home Office and the Bar reacted unfavourably to the idea of the television link method allowing the allegedly abused child to be in a separate room from the court. That is now common practice throughout the land. However, there was a great deal of adverse criticism before that method was tried.
Why therefore do we not try this method, perhaps in three areas? Many Members of the Committee spoke, worryingly perhaps, against the amendment. In the case of the television link, when there was adverse criticism, we tried it, experimented and finally 43 accepted it. Why do we not in this case have a trial in perhaps three areas? I am bound to point out that the amendment is based on the recommendations of Judge Pigot in the quite extraordinary report of the Advisory Group on Video Evidence. Judge Pigot and his committee, one of whom I must point out was a detective chief superintendent in the Metropolitan Police, and another a barrister, agreed with the recommendation. The judge had wide experience. He was a circuit judge from 1972 to 1990. He practised in Liverpool on the northern circuit until 1977. He was appointed as Common Serjeant in the City of London. He had had wide experience and we pay tribute to his wisdom and work.
If the Home Office and the Bar will not accept this amendment, perhaps I may suggest that, as with the television link process, the method of a pre-trial hearing should be tried experimentally. A conference was organised in Leeds University at the Department of Psychiatry. The big hall was full. The conference was attended by the West Yorkshire Police, social workers, teachers and lawyers. The recommendations of the Pigot committee were reported, discussed, debated and accepted 100 per cent. by all those people.
Furthermore, the principle of the Pigot recommendation is not new. Sections 42 and 43 of the Children and Young Persons Act 1933 already provides that where a court appearance would endanger a child's life or health, he or she can be questioned before a magistrate provided that the defence is able to put questions and a written transcript of the interview can replace the child's live evidence at the trial. If the Minister finds himself quite unable to accept the amendment, perhaps he would think of looking at Sections 42 and 43 of the Children and Young Persons Act and possibly widening them.
Perhaps I may gently chide the noble Lord, Lord Hutchinson. On 16th April—in a completely different context, I admit—the noble Lord chided the noble and learned Lord, Lord Ackner, for resisting a new idea. He said:For … years the noble and learned Lord was teaching the old culture of sentencing"—[official Report, 16/4/91; col. 1372.]At col. 1386 he said:He is clearly stuck in the old … culture".Are those who speak strongly for the amendment "stuck in the old culture"? We have new circumstances which must be met in a new way.
On the question of justice, naturally the children's organisations support the amendment, as the noble Lord, Lord Mottistone, said. Therefore it could be said that we are biased. As the noble Lord, Lord Hutchinson, said, we must agree with justice. It is in the interests of the child that an alleged abuser—in particular if the allegation involves the father—should be found not guilty and should receive justice if he has not committed the offence, as indeed should any other man. I am conscious of that situation as last year I had to deal with a man who was wrongly accused of having had sexual dealings with a foster child. The case never came to court. However, justice should be done to the child, to the alleged abuser and to the community.
44 On justice for the community, have any Members of the Committee ever taken a child into a court? One takes the child the day before the hearing and says, "The judge will sit here. The jury will sit here. You will sit here and you will just answer the questions that you are asked". The child says, "Yes". The next day one takes the child to court; he does not answer anything and the case has to be discharged. Is that justice for the community? Is that justice for the alleged abuser who has neither been found guilty nor not guilty? That seems a very serious situation.
I turn to the issue of justice for the child. The case which I cited involved a child of three. I shall not go into the horrible things that were done to her but at an early stage the child was able to say exactly what happened and was able to choose from a number of men the man who in fact committed the offence. Research at the Park Hospital in Oxford and from overseas, in particular in Colorado, has shown that the younger a child is, the clearer the truth when the account is given nearer the event. I therefore consider that with these provisions justice would be done. I support the amendment. If the Minister cannot accept it, I hope that he will at least reconsider the position, because new and terrible cases such as the one to which I have referred need to be dealt with by a different method.
§ Lord Ackner
I rise, first, to give the Committee an assurance that it is not the inevitable stimulation of the oft-repeated Hutchinson refrain that has at last brought me to my feet. As a matter of ordinary tactics, I had waited to hear the noble Lord speak first before I rose to disagree with him.
I start by at least showing this degree of harmony. I entirely accept that it is a very sensitive area of criminal law in which one must be particularly on the qui vive to ensure that justice is done. We are concerned with the provision of a fair trial. However, a fair trial, as is so often said to be the case, means fairness to the prosecution as well as to the defence. The fairness must be within the context of the adversarial system because there is currently no intention to change it. Therefore there is little to be gained by saying, "If only we had another system". We have not; and we must make the best use of the system that we have.
In order that the trial is as fair as it can be, one of the essentials is to ensure that the quality of the evidence to be given against the accused is at its best. In regard to children, one achieves that—as to an extent one does with adults—by two very clear principles. First, one tries to reduce the ordeal in which the evidence is given. The greater the ordeal, the greater the difficulty of any witness to give evidence which properly records what in fact happened.
As a Queen's Bench judge over a period of nine years, I have tried a number of children cases. One has seen the harrowing experience which the child inevitably has to undergo in describing in detail, and even more so under cross-examination, the abuse which is alleged. Quite obviously there are a number of occasions when the child gives evidence which is inaccurate. The noble Lord, Lord Hutchinson, referred to a child who, under his or someone else's 45 cross-examination, admits almost with the first answer, "It's a lie". That may be a truthful answer. It may have been in order to bring to an end an ordeal which the child finds quite intolerable. So much then for trying to reduce the ordeal.
The other feature of any reliable evidence is to get the evidence on record as soon as one possibly can. A policeman writes a contemporaneous note in order that he has a record of what happened; and indeed any layman who is involved in an accident is well advised—assuming that he is in a fit state to do so—himself to write a contemporaneous record of exactly what has happened. One must bear in mind that, if one leaves the child for months before he or she gives his or her evidence, one may well find what I expect the more technical people would refer to as protective amnesia: a forgetfulness which has been brought about by the sheer overwhelming desire to put out of the mind what he or she has found so horrible. The nearer one brings the account to the event, the more likely it is to be reliable. In an informal situation such as the pre-trial suggestion, the material will come out in a much more natural way and is therefore likely to be that degree more reliable.
Crass-examination is available. No one suggests that such material should not be challenged. But it is being challenged, on the suggestion made in the amendment, at the earliest possible practical stage; and that is when the challenge may be most effective. No one seeks to shut out the defence who subsequently find relevant material which should have been put to the child. I accept that those occasions will occur but they are likely to be rare. When they occur the child is obviously subjected to the trauma of having, on a second occasion, to re-live the events. But the r umber of occasions on which that will not occur surely justify the two-stage situation.
Tie noble Lord, Lord Hutchinson, said that having gone through this process one may end up with a plea. The process may stimulate the pleas because the defence will have the majority of the material well in advance, subject to any new matters that may arise. That can be considered between solicitor, counsel and the client in deciding whether his account remains the same. I venture to suggest that the number of pleas that should have been made in the first case will increase significantly.
I do not wish the Committee to believe that I have merely surrendered to the irresistible persuasiveness of the noble Baroness, Lady Faithfull. I have a recent letter written on behalf of the Council of Her Majesty's Circuit Judges. The last paragraph states:May I raise one fresh matter. In our response to the proposals of the Pigot Committee on Children's Evidence, which we very much welcomed, we envisaged a scheme whereby the child's evidence—certainly that of a child victim—would be completed by cross-examination and reexamination in an informal setting before the actual trial began and would be video'd for the Jury.This is at present not contemplated by the Bill and we urge further consideration to be given to this".As I mentioned in this Chamber last week, the circuit judges carry out by far the bulk of criminal work in the Crown Courts and certainly in this category of case.
Reference was made to His Honour Judge Pigot. He was the Common Serjeant, the second senior judge 46 at the Old Bailey, until his illness. There is no doubt that he would have been the Recorder of London but for that illness. Not only was he a highly experienced practitioner in the criminal field but he was the most respected of circuit judges who has sat in the past 10 years. I do not believe that the dangers pointed out by the noble Lord, Lord Hutchinson, were likely to have escaped him, let alone his committee. I firmly support the amendment.
§ 5.30 p.m.
§ Lord Renton
Before the noble and learned Lord concludes his interesting speech will he deal with a point that has not yet been raised in the debate? Consideration of it follows naturally from what he said about the way to obtain the best evidence. The noble and learned Lord will have noticed that Amendment No. 82 provides that the accused will not be among the people present. Until now it has been fundamental that the accused should always be present. How does the noble and learned Lord view that proposal? Does the absence of the accused mean that the evidence is more likely to be obtained truthfully, as I believe to be the case?
§ Lord Ackner
That is probably the case. One can envisage a situation in which the child, to use a lawyer's phrase, cannot come up to proof in the presence of a father, stepfather, uncle or whomever. However, the accused will not be debarred from hearing and seeing through the video what is going on. He will be able to communicate with his counsel and give his comments about the evidence as it emerges so as to ensure that the cross-examiner has any additional material that he requires arising out of the answers that are given.
§ Lord Hutchinson of Lullington
Does the noble and learned Lord really consider it practical to cross-examine five or six children weeks before the trial in the absence of the other evidence which will be given in the court; for instance, that of the social workers and the police who took the statements? As an ex-advocate who perhaps did not often appear for the defence in such cases, does he really consider that to be a practical proposition?
§ Lord Ackner
Since my noble friend retired from active practice, increased impetus and pressure have been put upon the advocate and his instructing solicitors to prepare their cases a great deal earlier than used to be the case. The obligation to submit, for instance, a skeleton argument and to attend pre-trial reviews and conferences has added—and I sympathise—to the burdens placed on the busy practitioner. He must now work faster and obtain from his solicitor, whose burdens are also thus increased, the information that he would have waited for leisurely. That can be done but, as are most professions, we are resistant to learning new tricks. We must do so.
§ Lord Henderson of Brompton
I wish to speak immediately after the noble and learned Lord, Lord Ackner, because I strongly agree with what he said. I wish to tell a short story. I do not possess the expertise of Members of the Committee who are learned in the 47 law, nor that of the noble Baroness, Lady Faithfull. However I have personal experience which confirms the wise words spoken by the noble and learned Lord, Lord Ackner.
Long ago one of my children was sexually assaulted by a stranger. He was not a member of our household; he was totally unknown to us. At the time the child was aged six and there was one independent witness aged four. I wish to endorse what was said by the noble and learned Lord and the noble Baroness. The further away one gets from the event the more muddled and confused the child becomes. The noble and learned Lord said that the quality of a child's evidence is at its best when given as soon as possible after the event.
Our experience was that the child was able to make a composed statement before a kindly police constable about two hours after the incident. The child was able to give a sufficiently accurate description of the offender and his car to enable the police to apprehend him. I should have welcomed the Pigot proposals at that time so that the child would have been able to give as clear an account to a trained examiner, following a code of practice, as it was possible to give to the police constable.
I shall say little more because fortunately the accurate deposition of the child was such that the man admitted his crime. Therefore the child did not have to appear before the court to which the offender was sent for sentence, which was an immense bonus for my family. That was the most distressing event which has ever occurred to me or to the child.
Anything which can be done in consideration of the child should be done and the Pigot proposals should be treated with the utmost seriousness by the Government. All the points which have been raised by a number of most respected Members of the Committee who are learned in the law—from the noble Lord, Lord Renton, the noble Lord, Lord Campbell of Alloway, and the noble Lord, Lord Hutchinson of Lullington—should be examined with great care. However, those are Committee points which should not be allowed to get in the way of this most important amendment.
§ Earl Russell
This is an intensely difficult matter. It is a clash between right and right. The noble Baroness, Lady Faithfull, and my noble friend Lord Hutchinson of Lullington both made extremely powerful cases.
It is not only a clash between right and right but also between two cultures: those concerned with child welfare, with an immense amount of knowledge and experience behind them, and those concerned with the administration of justice. Where there is a culture clash in the drafting of legislation, we must accept that we shall never get it right because there is no such thing as a draft which is entirely right.
On the one hand, those concerned with child welfare are clearly right that children are more likely to tell the truth when not in the presence of the person being accused, in a reasonably friendly environment and as near to the time of the alleged incident as possible. In those ways, their case is powerful. On the other hand, the legal profession is concerned that all 48 the arguments should be heard in public, all the issues should be heard together and that there should be a right to challenge whatever is said against an accused person.
The resolution of this matter must be to choose the path which is most likely to get at the truth. That is the line pursued by the noble and learned Lord, Lord Ackner. If he is right that accepting this amendment would mean that we should be more likely to get at the truth, that would be the end of the matter. The question is: is it?
I shall not pursue the question of how far children can lie. On this, on the whole, my sympathies are with my noble friend Lord Hutchinson, but that is a long argument and I do not believe that we need go into it now. I cannot see that the law in its official capacity can ever presume that any category of people cannot lie because once the law presumes that, then it is not conducting a trial. The first time I ever heard a case in court, which was a long time ago now, the judge was explaining to one of the accused, in effect, that policemen cannot lie. I do not believe that any judge would say that today.
There must be the possibility of challenge. For that reason, I am not entirely comfortable about the provision of cross-examination before trial. I understand entirely the arguments upon which that is put forward. The case put by the noble and learned Lord, Lord Ackner, is sound as far as it goes.
The question is: which is the most powerful case? I cannot make up my mind about that. A cross-examination before trial seems to me rather like conducting a Committee stage before the publication of a Bill. In some cases it may assist to get at the truth but I can think of a great many in which it may not.
The other point on which we seem to be stuck is the problem of recall. Here I shall ask the noble Lord, Lord Mottistone, and the drafter of the amendment whether they will consider a slightly wider drafting of the circumstances in which recall would be permitted. Should the emergence of new information be the only circumstance? As far as I can see, recalls are most likely to be needed when a new question arises and a new issue emerges, which often happens in the course of cross-examination. Because the court wishes to be satisfied on a new question, it needs to ask some more questions.
I agree with the noble Lord, Lord Renton, about paragraph (c) of the amendment. I am glad that he made that point. I do not believe that the Bill has it quite right although it is very near to it; I do not believe that the amendment has it quite right although it is very near to it. I have a great respect for the adversarial system but on this issue I do not believe that we shall make progress by adversarial methods. Perhaps the Minister will agree that before Report stage there is a case for a quiet round-the-table discussion among some of the interested parties to this issue to see whether we can produce a slightly better form of words, with a slightly larger area of general agreement.
§ 5.45 p.m.
§ Lord Richard
For a member of the Bar prudence and self-preservation always mean that one sits down when a judge is about to speak. In this case I was delighted to sit down when the noble and learned Lord, Lord Ackner, rose. When he sat down I found that I agreed with almost 80 per cent. of what he said. Therefore, not only was it a pleasure but it was a surprise.
I listened very carefully to everything which has been said in the debate. As a practising lawyer, at first blush I found the provisions of the amendment difficult to swallow. The proposition that there should be an examination and cross-examination way in advance of the trial and that that should be the evidence received at the trial is a difficult one for those of us who practise in the courts. We are inevitably faced with an adversarial system in which the witnesses from one side give evidence and are cross-examined there and then and the other side's witnesses also give evidence and are cross-examined there and then.
However, on reflection the amendment is rather more acceptable, even to a lawyer used to the adversarial system, than are the original terms of the Bill. I find it impressive in the amendment that the examination and cross-examination will take place at approximately the same time. In other words, it is not a case of the witness giving evidence, as in the framework set out in the Bill, which is video recorded and is shown; then perhaps months later the witness is taken into court and is cross-examined on the basis of what he or she said in the video recording months before. That is more unsatisfactory than a situation in which evidence is given, cross-examination takes place with the safeguards set out in the amendment moved by the noble Lord, Lord Mottistone, and both are recorded and shown to the jury at the trial. I find the system proposed in the amendment rather more impressive than the original terms of the Bill.
The difficulty is—and it is a genuine difficulty however one looks at the matter—that at some stage cross-examination must take place on the basis of information collated, collected and investigated by instructing solicitors on behalf of the accused. The danger of the amendment as it stands is that if the pre-trial hearing and cross-examination is contemporary with the offence—and many of the speeches this afternoon have made the point that there is a more accurate recollection the nearer it is to the time of the offence—it will be impossible at that stage to conduct a sensible cross-examination.
In the moving case referred to by the noble Lord, Lord Henderson, it would have been quite impossible for a solicitor acting for the accused, who by then had probably only been charged, to cross-examine in anything other than a most perfunctory and non-detailed way.
§ Lord Mottistone
Of course the hearing should take place as soon as possible after the event—the sooner the better from the child's point of view. However, does not the noble Lord agree that it will be difficult to get people together as quickly as we would like 50 within the terms of Amendment No. 82? It is more likely to be three or even four weeks before one can have the judge, both counsel and the hearing arranged than it is to be three days, as one would like. I should have thought that that—although hopefully it would be as soon as possible—must give time for all the bits to come together.
§ Lord Richard
It may. However, perhaps I may suggest an alternative which the noble Lord may find acceptable. It is clearly right that immediately after the incident a tape recording should be taken of the initial interview with a trained police officer and possibly a social worker present, and that that should be video recorded. In that way there will be an immediate account by the child of what is alleged to have happened.
The pre-trial hearing can take place at a convenient time between the taking of that video recording and the trial, at a time when the defence are in a position, because the investigation has taken place, to cross-examine and make sense of that cross-examination. In effect, the child would have to give two versions, one in the first video of the immediate complaint. In many police stations that is now done automatically. It is not done in the presence of judge or counsel; nobody cross-examines the child; it is merely the complainant telling his or her story in front of a camera. In many cases that becomes admissible evidence. I shall not go into the technicalities of how it becomes admissible but certainly in many cases in which I have been involved that video recording has been shown to the jury.
The pre-trial hearing referred to in the amendments could take place at a convenient time to be agreed with the court, the parties, the police and, indeed, the child or the child's guardian or parents. At that hearing, which is not in secret and which is protective, evidence can be given and cross-examination can take place. If the noble Lord sees that as a sensible way forward I have no problem in supporting the thrust of the amendment.
§ Lord Hutchinson of Lullington
Perhaps the noble Lord would give way. Does the noble Lord, Lord Richard, mean that the child will give evidence a second time? Is that the implication of what he is saying?
§ Lord Richard
Yes. I thought I had made that clear. What is important also is that the child will never give evidence in court. After all, I understand that that is what Pigot is designed to avoid: the intention is to spare the child from going into court facing people dressed in funny clothes using language that perhaps he or she does not understand, though I may say that many people do not understand it. The child then is not faced with an atmosphere and ambience which is totally foreign and alien. If we can at the same time protect the child and the rights of the accused as best possible, perhaps we are beginning to square the circle.
Finally, I agree with the noble Earl, Lord Russell. Two principles clearly conflict. One is the right principle, the inevitable desire to protect the child from being put through the ordeal of what is normally 51 an adversarial trial. The other is the undoubted rights of an accused person, particularly in the kind of case where sentences and penalties may be high.
I believe that those principles can be reconciled in the way I suggested. If the noble Lord and those who appended their names to the amendment can accept that, I have no difficulty in supporting the amendment.
In moving the amendment my noble friend put his finger upon an extremely important point. The speeches to the amendment indicate how concerned Members of the Committee are to find the correct solution to the problem. I agreed with my noble friend Lady Faithfull when she paid tribute to His Honour Judge Pigot that he produced an enormously helpful report. As my noble friend Lord Renton said, it is breaking new ground. It is important that we do the best we can to get the legislation right, as the noble Lord, Lord Hutchinson, said. He said that whenever he asked children a question he did so in gentle tones. I am sure he did. I have had the privilege of sitting opposite the noble Lord, Lord Hutchinson, for three years and I find his questioning formidable. I wish he would use his child's approach when he asks questions of me in the Chamber.
This is a matter upon which everyone is concerned to reach the right balance. Perhaps I may indicate the Government's view and how we came to the conclusions we have on what is a very vexed question regarding cross-examination. It is an issue which raises a genuine dilemma for all who are anxious to spare the child while preserving the rights of the accused.
There is general agreement that the defence must have the opportunity of testing the evidence. The question posed by the amendment is not whether that should be done but when and how it should take place. My noble friend favours out-of-court cross-examination before the trial begins. He emphasised that children do not remember for very long. Of course that is important. The noble and learned Lord, Lord Ackner, said virtually the same thing when he stated—I paraphrase—that the sooner one gets the matter dealt with the more likely one is to get the facts correct. I am sure that that is so, and it is a substantial reason for video recording the child's evidence immediately.
I understand and entirely share the concern that the child should not be caused any unnecessary suffering or delay. The possibility of delaying treatment or therapy is also often mentioned. I agree that traumatised children must be given appropriate treatment as soon as possible. At the moment that is sometimes delayed because the prosecution is concerned that the child's performance as a witness may be adversely affected by the treatment or that he may be tainted in some way.
I hope that the Committee agree that early video recording should overcome a good deal of that objection. In theory, moving the cross-examination to a preliminary hearing may help. Our view is that the theory tends to fall down in practice if there is any risk of a recall. The point is that, if one does not want 52 treatment until after cross-examination, then that treatment must be delayed until any possibility of cross-examination has passed. Recall for cross-examination can happen at any time during the trial proper, even under my noble friend's amendment.
We are all concerned with the need to avoid delays in court proceedings in child abuse cases. The Pigot clauses help a great deal by ruling out the necessity of committal proceedings and imposing a clear duty on the courts regarding avoidance of unnecessary delay. Those concerned with the operation of the criminal courts are fully aware of the problem. However, it should be remembered that some of the delay occurs before the case reaches the court. In the interests of justice, particularly in serious cases, time must be allowed for the case to be prepared properly.
The noble Lord, Lord Hutchinson of Lullington, said that it was unrealistic to expect the defence to be in a position to do the necessary work months before the trial. Of course the noble Lord makes the point far better than I could, that with the best will in the world conducting cross-examination months before the trial is impractical. The danger is that we shall then end up with more recalls and therefore more rather than less stress for the child.
Perhaps I could say a little in regard to my noble friend's point on recalls. The Government's view is that the pre-trial cross-examination makes the child witness more vulnerable to recalls, adjournments and further delays. That is something which the noble Lord, Lord Hutchinson, was worried about. Recalls may be comparatively rare now, but that could well change with the advent of video evidence. It may be that that is why my noble friend tabled Amendment No. 84; namely, that a special device should be inserted to try to limit the recalls taking place. He said that they should take place only if the defence has produced fresh evidence which in the judgment of the court,may have a significant bearing on the outcome of the trial".Therein lies the problem. There can always be an element of doubt as to whether the evidence is or is not new or whether it might or might not have a significant bearing on the outcome of the trial.
We are talking here of the evidence of what is likely to be the principal prosecution witness. Attempts to discourage recalls of that witness would be difficult to defend. I believe that the judge would want to give the benefit of the doubt to the defence where the principal prosecution witness is involved. My noble friend Lord Renton criticised the expression "dealt with" contained in Clause 45, at page 30, line 22. He criticised it on the ground that the Bill should have said "dealt with adequately". That is exactly what "dealt with" means. I do not see how one can deal with a matter without dealing with it adequately.
§ 6 p.m.
§ Lord Renton
Perhaps I did not make the matter plain enough. It is possible for a matter to be said to be dealt with when it has been merely touched on in a rather cursory way. It is important that the matter should be dealt with adequately.
I had in mind the strictures which my noble friend addressed to me last week. He congratulated the Government and said that he would always do so when they left out words instead of putting them in. That is what the parliamentary draftsman had in mind when he drafted the clause in the way that he did. My advice is that "dealt with" means "dealt with adequately".
My noble friend Lady Faithfull said that children would be too afraid to speak in court. Under the Government's proposals the child's evidence would in almost every case be given by a pre-recorded video. Further evidence would be given by a live video link from another room. In effect, the child should not have to appear in the courtroom itself.
We come to the important point that the amendment may well give rise to trials within trials in order to determine whether the evidence is truly new. The effect of that would be to delay the proceedings further. I do not think that that would be in the interests of the child witness, who would not only suffer from the delay but from the stress of appearing at a whole series of mini-trials. The defence might unfairly exploit the child's confusion at being questioned on several occasions.
The noble and learned Lord, Lord Ackner, referred to the circuit judges' letter of support for this amendment. It is perfectly true that the Council of Her Majesty's Circuit Judges supported the idea of a pre-trial cross-examination system. With respect to the noble and learned Lord and to that distinguished body, that does not represent the view of all Her Majesty's judges. After publication of the Pigot Report we consulted very carefully. Of the six responses from what might be called judicial interests, only one was firmly and unequivocally in favour of the proposal. At least two presiding circuit judges warned that pre-trial cross-examination could end up by duplicating the trial.
My noble friend Lady Faithfull asked whether we could try three trial areas. The short answer is that we could not support the idea of an experimental pre-trial system in three areas of the country because we could not experiment with procedures where the liberty of a man or woman was at stake. We weighed these considerations very carefully indeed. The Government concluded that they could not pursue the idea of pre-trial cross-examination. After very careful consideration we decided that it was better not to have it. In these clauses we propose a regime which should spare the child examination-in-chief, allowing a video to serve instead.
It may well be that the existence of a video which is made admissible in proceedings will lead to a guilty plea and thereby obviate the need for further evidence from the child. If the defence wishes to test a prosecution case which rests mainly on the child's evidence, we see no alternative to cross-examination, albeit with the child out of the courtroom and giving evidence via a television link. That is the view which Her Majesty's Government have taken. I accept that this matter concerns the Committee, and doubtless will continue to do so, in order to get the position right. I appreciate that there are conflicting views on 54 the subject. But for the reasons that I have given it is better to try to pursue the course I have suggested and to see how we continue with it.
§ Lord Mottistone
I am grateful to all Members of the Committee who have spoken who have given immense care to this problem. I agree with the noble Earl, Lord Russell, in one respect only, in that there are two conflicting basic approaches—namely, care for the child and care for justice. However, I do not agree with him in his support of the noble Lord, Lord Hutchinson. I do not want to appear unfair, but the contribution from the noble Lord, Lord Hutchinson, appeared to demonstrate that he had not appreciated the new possibilities of the video approach. Obviously his experience was in the past rather than the present. That view also applies to my noble friends who are also eminent counsel. They were talking in the past rather than in the future.
As my noble friend the Minister said, we are cutting fresh ground. He said that we are making some move on the Bill as it stands now and that we should try that out and return for further legislation if we need to improve it. There is a great deal to be said for that. However, it misses one terribly important point which my noble friend Lady Faithfull made so well. I also quoted the views of the President of the Royal College of Psychiatrists. In order to get the best justice, one wants the newest evidence from the child. One has the immediate recording which the noble Lord, Lord Richard, spoke about. That is equivalent to the recommendation made to us all by the noble and learned Lord, Lord Ackner; namely, that when we are involved in any kind of accident we should write down the details quickly before we have forgotten. I am not saying that as a joke. That goes some way towards getting the child's view.
My friends in the NSPCC would say that that is all very well, but over a longer period, particularly if one wishes to have other persons asking questions, one finds that something on the lines of this specially structured pre-trial service will bring out a better chance of accurate evidence from the child than if one relies purely on producing a first recording in court some months later. What we are after, and what the noble Earl, Lord Russell, said we must not forget, is that we must have justice in the sense that the accused has presented against him the most accurate information that we can arrive at. The best solution is that put forward by the noble Lord, Lord Richard. He said that we should use the immediate recording, but with the specially structured pre-trial procedure.
What I found disappointing in my noble friend's reply was his view that it would not be right to have, as my noble friend Lady Faithfull suggested, two or three experiments in regard to this process. Perhaps he would care to think again about that. I concede that it is all very well to say, "We will have an experiment in area X". However, it may then be discovered that there are no particularly relevant cases in area X but that there are some in area Z in another part of the country. Therefore I can see that there are difficulties. However, I should like my noble friend to give further thought to having an experiment on the lines of what 55 I call the Richard solution. We could then get some sort of a measure without having to wait for years before there is another Criminal Justice Bill.
My noble friend may say that experiments are not fair to the accused or are not fair to the conduct of good justice, or whatever was the phrase that he used. I recall that only recently certain magistrates' benches were invited to conduct trials with regard to traffic offences. I forget the detail and I have not had time to look it up. Trials are conducted in the magistrates' courts. I should be very surprised if the Crown Courts do not carry out experiments too. If they have not done so, perhaps there is a first time for everything. We are doing something new.
It was heartening that the noble and learned Lord, Lord Ackner, with all his experience, was so strongly behind not only the Pigot Report, which again came from a very experienced judicial background, but also my amendment. That was to me most encouraging. I certainly do not think that my noble friend the Minister can come to a conclusion at this stage of the game. In the weeks before Report stage I shall certainly read with immense care all that has been said, including what the noble Lord, Lord Hutchinson, has said, with a view to seeing whether I can come back with something which is an improvement on these amendments.
I hope, however, that my noble friend the Minister might direct his thoughts to a possible change—indeed he might come forward with an amendment rather on the lines that I suggest—and give very serious consideration somehow to arranging trials of what I call the Richard solution; that is, of having immediate evidence recorded under the care of an experienced practitioner or a policeman, with the subsequent pre-trial hearing on the lines suggested in my Amendment No. 72 and Amendments Nos. 73 and 74 as far as they are relevant. That would be very helpful. Perhaps my noble friend can give me some hope that he may think that my proposal is worth looking at.
§ Lord Renton
Before my noble friend on the Front Bench replies to that invitation, perhaps I may make so bold as to say that the crux of the matter is that examination-in-chief and cross-examination should not be separated by a long distance of time.
§ 6.15 p.m.
My noble friend has asked me whether I will consider the point that he made. Of course I shall. I shall consider most carefully all that has been said in the debate. The noble Earl, Lord Russell, suggested a round-table discussion before Report. I am happy to meet the wishes of the Committee if I can help over this in any way. We must try to get this as right as possible, and there are different views on it. If any noble Lord wishes to come to see me and discuss it with those of my officials who are far more experienced than I am in the technicalities of the issues, I should be delighted for that to happen. I cannot give a guarantee that as a result everything will be different. However, I undertake to consider 56 everything that has been said and everything that anyone cares to say to me about this. We want to get it right. It is breaking new ground.
My noble friend Lord Mottistone paraphrased by saying that we were taking a small step and leaving other measures until later. I would not wish him to underestimate what we are doing in this Bill. It is not just a tentative step forward; it is a set of very major reforms indeed. They sweep away barriers to children giving evidence; they ensure that video evidence can be admitted; they ban cross-examination in person by the accused; and they speed up the whole process by bypassing committal proceedings. These are enormous steps forward. If noble Lords wish to discuss this matter with me between now and Report stage I shall of course be happy to do so.
§ Lord Campbell of Alloway
Perhaps I may try to make a constructive suggestion. We are concerned with a new area and with an area of new procedures which will have to be tried and which will be a matter of experiment. Would it be a solution provisionally, so to speak, to take the Bill as it stands but to enact an enabling provision for the Lord Chancellor and the Lord Chief Justice to produce procedural rules for this particular type of case? In other words, they could, as a matter of discretion, be operated, tried in various areas for a limited period of time and withdrawn. I put the suggestion forward as perhaps a way through which could, by experiment, produce the right answer. If the right answer be the approach of the noble Lord, Lord Richard, so be it.
§ Lord Hutchinson of Lullington
We must be careful about carrying out experiments when people are charged with criminal offences. There might be a problem in the Court of Appeal. Someone might say "There was an experiment in my case: I did not get proper justice".
§ Lord Richard
The noble Lord is quite right about blanket experiments. One should not experiment in cases where a person's life or liberty is involved. On the other hand, if the accused consented to this procedure then I see no reason at all why it should not be tried. Again, there is no reason at all why defendants who are going to be faced with this offence should not be given the choice of whether they wish to be tried in accordance with the new procedure or in accordance with the procedure in the Bill. I do not think that that is insuperable.
§ Lord Campbell of Alloway
I was not suggesting that it should be proposed without assent. I took it rather shortly, but I accept that.
§ Earl Russell
What the noble Lord, Lord Campbell of Alloway, proposes sounds remarkably like a Henry VIII clause, allowing the Minister to vary primary legislation by regulation. We ought to view that with some misgiving.
I do not know quite whom one will satisfy or not in reply to those observations. I am most grateful to the noble Lord, Lord Hutchinson, for already using his childlike approach to questioning when he suggests that I should be very careful about 57 accepting such advice. Of course I shall be careful. I think it would be the best thing if we considered all the matters that have been mentioned this afternoon. The offer that I have given remains. If any noble Lord wishes to come to see me about a particular point—I suggest it is not the whole Committee, because that would make the object rather purposeless—I am there to help.
§ Lord Mottistone
I thank all those who have conducted what is the second debate on the subject. I thank my noble friend for considering the matter further. At this stage, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 83 and 84 not moved.]
§ Lord Mottistone moved Amendment No. 85:
Page 30, line 47, at end insert:
("()Where an application is made under—
§ The noble Lord said: A similar amendment to the one now before the Committee was moved in another place. However, I understand that it was resisted by the Government in that place on the basis that judges do not have to record the reasons for refusing to allow the use of a live television link. My amendment therefore seeks to cover that point.
§ The insertion of this subsection would require courts to record in writing the reasons for the inadmissibility of all or part of a video recording or the reasons for refusing to give leave to use the live TV link. The effect and benefits of such a requirement would include the ability to use the body of information collected in that way to review and improve standards and practice and would help to ensure that the number being rejected remains small. It would also assist the Secretary of State to perform his proposed duty to carry out regular reviews and make recommendations for improvement in the use of video technology. The amendment would be of long-term benefit in the development and appropriate use of pre-recorded video technology, and the use of a live television link.
§ Although judges do not have to record the reasons for refusing to allow the use of a live television link—the argument put forward by the Government in another place—I understand that judges do have to record their opinions in other circumstances, such as refusal to give bail under the Bail Act 1976. That has the effect of focusing the court's mind. Given the radical and innovatory nature of Part III of the Bill, similar provision would be most useful. I have received support for the amendment from the president of the Royal College of Psychiatrists. I have also received other support for it, but I shall not trouble the Committee with such details. I beg to move.
§ Lord Hailsham of Saint Marylebone
Given the following facts, I wonder whether this amendment is really necessary. Before an application is made to the court on the trial or on any judicial proceeding, 58 argument must be heard from both sides. I believe that a shorthand note is taken of such an application in all courts. Under the wording of the amendment, the court is expected to give reasons which would then be recorded. Therefore, I wonder what it would add to the existing procedures.
The Government have considered very carefully the suggestion that the courts should be required to give reasons, and in writing, for excluding a videotaped interview submitted under Clause 45. Our view is, as it was with the power to refuse an application for a live television link, that it is not necessary to require a formal record by statute and that such a requirement is not justified.
Our reasons are these. First, judges and magistrates already give reasons for their decisions when they believe that it would be helpful. They do not need to be told to do so. But, in the case of Clause 45, the Bill makes it clear that video evidence should be allowed unless it is contrary to the interests of justice. Such decisions will need to be taken looking at the case in the round. We do not require written explanations from the courts in the many other circumstances where they are required to consider granting leave for a particular facility. I do not believe that we could justify including an exceptional requirement for a formal record here.
The Government appreciate the need to keep new provisions under review. In the case of live television links, we have been monitoring carefully the impact of the new provisions and, although the review is not yet complete, we are aware that it has been rare—indeed, very rare—to date for the courts to refuse an application. Moreover, if it were refused the reasons do not have to be given. Therefore, I suggest it is reasonable that the same should apply in these circumstances.
I can assure my noble friend that we shall be monitoring equally closely the new provisions under Clause 45. However, I do not think it would be helpful to impose a rigid rule on the courts in the context of either Act.
§ Lord Mottistone
I thank my noble friend for that reply. As regards the point made by my noble and learned friend Lord Hailsham, I believe the recordings that are made on television links are rather different from the ordinary records of court proceedings. In fact, they reveal much more and one can learn a great deal more from them as regards how best to use the television facility.
However, I note what my noble friend said. I do not intend to press the amendment to a Division at this stage. I shall, however, read carefully my noble friend's response and, if I feel that anything more needs to be done, I reserve the right to return to the matter on Report. In the meantime, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 45 agreed to.
Lord Mottistone moved Amendment No. 86:
After Clause 45, insert the following new clause:
§ ("Questions by a third party for child witnesses
§ —(1) At a pre-trial hearing and any subsequent hearing where the child witness—
- (i) is very young,
- (ii) has professionally diagnosed communication or learning difficulties, or
- (iii) has been professionally assessed as having emotional and behavioural difficulties,
§ (2) No person other than the third party shall be in the room with, or visible to, the child witness.").
The noble Lord said: As the heading to the proposed new clause states, this amendment deals with:
Questions by a third party for child witnesses".
It leads into another amendment which is tabled in my name which seeks to achieve a code of practice. However, I do not wish to discuss that aspect at present.
A majority of the Advisory Group on Video Evidence recommended that the trial judge should be able to make special arrangements for the examination of very young or disturbed children at a pre-trial hearing where appropriate. It was proposed that the judge's discretion should extend where necessary to:
allowing the relaying of questions from counsel through a paediatrician, child psychiatrist, social worker or person who enjoys the child's confidence. In these circumstances nobody except for the trusted party would be visible to the child, although everyone with an interest would be able to communicate, indirectly, through the interlocutor".
The amendment seeks to enact those recommendations and to extend them to children who have professionally diagnosed communication or learning difficulties which may make it particularly difficult for them to communicate effectively with unfamiliar adults. One example of the latter category of child witness would be children with certain forms of autism which make communication with strangers, or in front of numbers of people, difficult.
§ Professionals working with children who have learning or communication difficulties are increasingly expressing concern about the particular vulnerability of such children to abuse of all kinds. Adults who abuse children may particularly target those with communication difficulties precisely because of the problems that they often have in informing others about the abuse. Such children may have particular difficulties in giving evidence, but in many cases those difficulties could be overcome by the type of provision that this amendment seeks to allow.
§ Many children who are able to give a coherent account of events in the presence of a trusted adult are unable to do so in the presence of strangers. If enacted, the proposed new clause would enable the evidence of such children to be heard while enabling cross-examination to take place. Its provisions would be used in specific and exceptional circumstances.
§ Once again, I have received support for the amendment from the Royal College of Psychiatrists. The college tells me that in other countries it has sometimes proved useful for questions to be put to a child by a third party. The third party would usually 60 be a professional with specific expertise in communicating with children. Sometimes this has helped the cause of justice.
§ Very disturbed or young children might be able to provide information to the court through this means. Very rarely do we envisage this method being deemed as appropriate by the courts. However, Amendment No. 86 allows this to happen in exceptional cases. I beg to move.
§ 6.30 p.m.
§ Lord Hutchinson of Lullington
Perhaps the noble Lord, Lord Mottistone, will allow me to say two or three words about the amendment. My experience is of course in the past. The trouble with many of the geriatrics in this place, among whom I must count myself, is that is inevitably so. I agree that I am progressively unqualified to participate in debates on current affairs. That criticism goes home.
I agree with subsection (1) (ii); but subparagraph (i) which refers to "is very young", and subparagraph (iii) which mentions behavioural difficulties, are extremely broad provisions and they make it difficult to make a decision. The accused person is faced not merely with a video taken in his absence as evidence against him, which is unique in the whole criminal process, he then has to cross-examine indirectly through a television link, and it is now suggested that he should cross-examine through a third party through a television link. The matter is becoming absurd except in exceptional circumstances. I presume that the question will be put to the absent witness through a television link, will be repeated by the third party, and then the answer will go to the third party and return through the television link. That form of cross-examination will be a little difficult.
§ Lord Mottistone
I believe the noble Lord had the linkage wrong. The question would be put to the third party (the special person) who would repeat it to the child and seek to obtain from the child the information required. There are various methods of doing that. It may not necessarily be a straight question. We are dealing with a child who is hampered in some way or who is very young.
When the child starts to answer, all the other parties to the investigation will see everything on the television screen. The information does not come to them through the special person. If the job is done properly, the parties will see the child responding. That is important. It means that those parties are obtaining the information. The third-party function is interpreting the question to the child. The child gives the information by demonstrating or by what he is trying to say. If the child is very young it may not be able to speak clearly. That is the picture.
§ Lady Kinloss
I support the amendment. It is an important one for children who are professionally diagnosed as having communication or learning difficulties. For example, as the noble Lord said, as in the case of autistic children who can give a coherent account of events in the presence of a trusted adult but 61 who have difficulty with anyone they do not know. If the child is unable to give evidence, that is not justice to the child or the defendant.
§ Lord Richard
I listened with care to what the noble Lord, Lord Hutchinson said. It is difficult to cross-examine in the way that he described. It is done through interpreters when there are people who do not speak the language. One asks the question. It is interpreted to the witness. The witness replies in the foreign language and that is interpreted to the questioner. It is a long and painful process. As I understand the substance of the amendment—not the drafting—that is the procedure that the noble Lord, Lord Mottistone, has in mind. In other words, where a chi Id cannot express himself properly or has professionally diagnosed communication or learning difficulties, one would in effect have an interpreter between the cross-examiner and the child. To protect the child, the only person in the room is the professional interpreter. If I understand the amendment correctly, it would seem to be sensible rather than cataclysmic.
§ Baroness Faithfull
There is another example. A deaf c communicates with someone who can make signs to him. It is therefore essential to have a communicator.
§ Lord Macaulay of Bragar
Perhaps I may ask the noble Lord, Lord Mottistone, what is his definition of "very young" and "behavioural difficulties". How will they be assessed at the hearing? Is "very young" four and younger? Does "behavioural difficulties" mean that a child does not behave at home? The clause is vague and will create great difficulties. Until now, judges have always had discretion to decide whether a child is old enough to give evidence in court.
§ Lord Mottistone
We saw the provision as one that might be introduced where relevant. "Very young" is difficult to define. Some children are "younger than others" regardless of their chronological age. It is difficult to give a figure and to say that all children under three or four are "very young". Some four year-olds might justify the description and some two year-olds might not. I am exaggerating the point because I hope that all children who needed such help would receive it. I hope we shall find a way of doing so. "Behavioural difficulties" are defined in other legislation. I shall look at the points the noble Lord has mentioned if we go further with another amendment on similar lines.
I am grateful to my noble friend for explaining how the amendment would work. The noble Lord, Lord Richard, said that there is no difficulty about using interpreters in our courts. He is right. Interpreters are already an established feature of our criminal procedure and no change in the law is needed to allow them to be used where there are severe communication difficulties. Specialists have also been used in court to assist with deaf and dumb children. The Government are unaware of any cases involving autistic children but if a child has communication difficulties, putting him or her in much the same 62 position as a deaf and dumb child, and special arrangements are requested to assist with the giving of evidence, we see no reason in principle why that request should be turned down.
I agree with the noble Lord, Lord Hutchinson, that we are dealing here with something different and something more than interpretation. I believe cross-examination works best as a dialogue between two people. The point of it can be completely lost if that element of spontaneity is forfeited. There is also the risk that a third party, however well-intentioned, could ask questions in a way which is prejudicial to the conduct of the case, or he may misunderstand what he is asked to do. The child's interest would not be served in any way by that.
The Government sympathise with the sentiments behind the clause, but there are two points which must be borne in mind. First, a child may well become confused by the fact that someone whom he or she saw as a friend begins to ask difficult and probing questions. That could have counter-productive effects. Secondly, it is increasingly recognised that a good rapport with a child is vital to the successful conduct of a case. An advocate who does not achieve that runs the risk of presenting a bad case. I believe that advocates are increasingly paying attention to that factor.
We are making it much easier for children to give their evidence and where cross-examination does occur, that will be able to be carried out from outside the courtroom by live TV link, distanced from the advocate and with a companion with the child. I see no reason why application should not be made for this companion to be a professional if that would put the child more at ease.
There are assumptions behind the drafting of the clause on which I should also make one or two comments. The first is that it refers to pre-trial hearings. The Committee will realise from our discussion on an earlier amendment that we have difficulty in agreeing with the suggestion. Secondly, the clause seeks to establish a statutory function for a specialist interlocutor in what we intend to be a non-statutory code of practice. Those are significant problems for the proposed new clause. I should be grateful if my noble friend could consider that.
§ Lord Harris of Greenwich
I confess that, for some of the reasons given by the noble Earl, Lord Ferrers, I am not filled with enthusiasm for the amendment. With great respect to the noble Lord, Lord Richard, I do not believe that there is an analogy with the interpreter. The latter is interpreting in a different language the precise terms of a question put by counsel. The third party will, almost by definition, not be doing that in normal circumstances. One could easily find oneself in a situation where leading questions were being put, or where the defence would argue before the Court of Appeal that the full question it wanted put to the child had not been put effectively and efficiently by the third party.
Perhaps we should bear in mind that at the end of some trials, given a charge of particular seriousness, a man may be at risk of being sent to prison for life. 63 That is not inconceivable. It is essential that one should have procedures which are defensible. I believe that the amendment goes too far.
§ Lord Mottistone
The noble Lords, Lord Harris, and Lord Hutchinson, and another Member of the Committee questioned the expertise of the third party in the case of Amendment No. 86. The Committee will note that it relates to an appropriate third party as laid down in the code of practice. I hope that the code of practice would be on the lines of my Amendment No. 88. It would make sure that the third parties were specially trained people who knew what was required of them. They would not necessarily ask the wrong questions. They would be there to elicit the truth which would be the highlight for them.
I take the points that my noble friend the Minister made. There is room for improvement of the wording, particularly in view of our debate. I feel certain that I shall wish to come back to this at the next stage of the Bill. However, at this moment I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ 6.45 p.m.
Lord Richard moved Amendment No. 86A:
After Clause 45, insert the following new clause:
§ ("Code of practice for children's evidence
§ The Secretary of State shall issue a code of practice in connection with—
- (a) evidence given by children; and
- (b) video recordings of testimony from child witnesses; and
- (c) cross-examination of child witnesses
§ The noble Lord said: The purpose of this amendment is to require the Secretary of State to issue a code of practice which would regulate the making and the use of pre-recorded video evidence in criminal proceedings. The code would provide authoritative guidance about how it could achieve good and consistently high standards in the making of videos to be used as evidence in the courtroom. It would also seek to establish a uniform approach to such evidence by the judiciary and other responsible agencies.
§ The code of practice should be based on principles which achieve two things: they must guarantee the rights of the accused and at the same time safeguard the welfare of the child. The drawing up of a code of practice regulating this area of work is particularly important since it would minimise the number of problem areas that are bound to arise in the process of implementing such a new and innovative piece of legislation.
§ There are a number of matters on which the code could give clear guidance: for example, location. It could give directions on the most appropriate venue and the kind of environment within which the recordings should be made. It could give guidance on timing, which we discussed upon a previous amendment. Some of the issues we discussed earlier are very much a matter of timing. The code could detail when a recording should be made. It could be at the point of disclosure, immediately before the court case or at some other time. The code could determine 64 who could or should be present during the recording of an interview and whether the child might be accompanied by a relative or friend. It could also deal with matters such as whether the child might be accompanied by anyone else. It could also deal with matters such as we discussed on the previous amendment.
§ Other amendments down are linked to this one, particularly Amendment No. 88. Again, it refers to matters which should be set out in the code of practice. The difference between Amendment No. 86A and Amendment No. 88 is that the latter relates to a voluntary code of conduct and the former to a code issued by the Secretary of State.
§ Everyone said this evening that we were moving into new territory or somewhat uncharted waters. If so, it is right that a code of practice regulating these matters should be statutory. It should be clear from the outset what we are trying to cover. I beg to move.
§ Lord Mottistone
Perhaps I may speak to Amendment No. 88 now, as it is linked with Amendment No. 86A. I appreciate that the introduction to Amendment No. 88 is not so good as that of Amendment No. 86A. The Committee will notice that it presupposes that the Secretary of State will be concerned with the matter, because the last line reads:and any matter felt appropriate by the Secretary of State".I apologise to the Committee if our amendment is not quite right. I entirely agree with the noble Lord, Lord Richard, that we should prefer to have a statutory code of practice. It is important. As the noble Lord, Lord Harris, said in relation to my previous amendment, we do not want hearsay evidence and mistakes in cross examination because the person helping the child is inexperienced. It is better to have a statutory code of practice than a non-statutory one, which I believe the Government favoured when the Bill was in another place. Then we can be sure that the legal side of the duties is properly tied up. I therefore hope that my noble friend the Minister will give a sympathetic hearing to a code of practice on the lines of either Amendment No. 86A or Amendment No. 88 or the two together.
§ Baroness Faithfull
I speak on behalf of those who have to deal with this work at grass roots: the police, social workers, teachers and the health organisations. The position is much clearer if these matters are specified, with a code of practice on the face of the Bill and not in regulations. I am afraid that, in reality, when dealing with such cases one looks at the Bill but very often one forgets or cannot find regulations. I support the amendment: the code of practice should be on the face of the Bill.
§ Lady Kinloss
When the Minister replies, perhaps he will say who will be responsible for the storage and disposal of video recorded interviews. Should that not be included in the code of practice?
Judge Pigot's committee recommended that there should be a code of practice for the conduct of video-recorded interviews with child witnesses. It gave three reasons: first, in order to 65 protect the welfare of those witnesses; secondly, in order to protect the rights of the accused; thirdly, in order to give guidance about best practice. The need for such guidance is unquestionable.
Under our proposals, the rules of court would require a person who wishes to tender a video recording in evidence to give full details of all the various circumstances in which the recording was made. These should include: the date, the time and the location of any interview, as well as all the persons who were present with the child during the interview. We intend that those rules should be supported by a code of practice on how video recordings should be made.
I fully appreciate the importance which the noble Lord, Lord Richard, and my noble friend place on a code of practice. My noble friend asked whether I would give the idea a sympathetic hearing; I can do so. I assure the Committee that it is definitely our intention to publish a code of practice. It will be drawn up after wide consultation with all the various agencies, with the voluntary bodies and with experts. We have already started the spadework for it. We have engaged two specialist advisers who are eminent academics, who are qualified respectively in psychology and the law, to produce a first draft as a basis for the necessary consultation and discussions. We are determined that the draft should take account of and as far as possible reconcile both legal and child welfare considerations, as well as contain advice on functional, technical and equipment issues.
The scope of the code will need to be wide. It will no doubt cover all the issues which are identified in the second of the clauses which we are considering. However, we must take care not to confuse practice with law. For example, we must not pretend that the code can determine how the law of evidence is applied, which is clearly the province of the courts.
I appreciate the noble Lord's concern that special care should be taken by counsel with the cross-examination of children of tender years, but I also think it is a matter primarily for the legal profession. I know the profession is aware of the problem and is giving serious and careful consideration to all the implications for cross-examination techniques. That is one of the messages from research on the use of live television links.
I understand the intention behind these new clauses, and I agree with a great deal of what has been said about the importance of the code and the need to get it right, but I question whether it would be particularly helpful to prescribe the areas to be covered by the code of practice before the consultation process has even begun.
The noble Lady, Lady Kinloss, asked who was responsible for the disposal or the storage of videos. I agree that this is an important and difficult area, and I can confirm that the code of practice will offer detailed advice on the storage and the destruction of tapes.
§ Lord Harris of Greenwich
Concerning the speech of the noble Earl, I was not quite clear what damage would be done if in fact the amendment were to be carried? One of the most fundamental arguments put 66 for the amendment was that put by the noble Baroness, Lady Faithfull. There will have to be a major training exercise for all those who will be concerned, be they social workers or police officers. They are going to have a highly sensitive job to do, and in the context of that situation it is infinitely preferable to have a statutory code.
Perhaps I may cite a particular problem area which has arisen in the past and which could arise in the future. A major criminal investigation took place outside London which led to a very fierce dispute between the police and social workers. As far as the police were concerned, the complaint was that some of the social workers had, for the most admirable of reasons, discussed with the children concerned the circumstances of what could be described as the criminal complaint, so that by the time the children had been seen by the police they were saying different things from what they otherwise would have done.
Given some of the past discussions we have had on this series of issues, it seems to me to be critically important that such matters be dealt with adequately in a code of conduct. Otherwise, there is a real risk that some cases will go badly wrong and that groups of people in different disciplines, who are motivated by nothing but the most admirable sentiments, will become extremely cross with one another.
We have already seen a number of cases in recent months and years where there have been great difficulties in this area. For that reason, if not for some of the others, it seems that the appropriate way of dealing with the matter would be by means of a statutory code. Given the fact that the noble Earl was good enough to say, about an hour ago, that he was prepared to listen to arguments on the previous matters we discussed, I hope that he will keep an open mind on this question. We are all trying to reach the same objective, and I believe there is a rather stronger argument for this statutory code than has been admitted by the noble Earl in the speech that he has delivered.
Because I said that I would listen to what Members of the Committee said concerning a previous amendment, I did not mean to imply that I would therefore have a closed mind on all the subsequent amendments. Of course I shall consider what has been said. Surprisingly, the noble Lord, Lord Harris, does not seem to have got the point, which is, if I may say so, unusual for him, but perhaps I misunderstood him.
If we accept either of these two amendments, all this says is that there shall be a code of practice. What is put in the code of practice is a matter for consideration, a matter for discussion, and something which will have to be investigated. Indeed, if the amendment of my noble friend, Lord Mottistone, were accepted, all this says is that the issues are to be covered by a code of practice. It does not say what the code of practice itself should say. Therefore, if the concern of the noble Lord, Lord Harris, is really a concern as to what the content of the code of practice would be, that would not be covered by the amendment.
67 I have given an undertaking that it is our intention to provide a code of practice. I have also said that most of the points of my noble friend's amendment would be taken into account in that code of practice. That being so, I do not see that we advance the cause very much by saying that there shall be a code of practice when there is going to be one in any event. What really matters is what goes into the code of practice. That is what we are discussing with all the interested parties at present.
§ Lord Harris of Greenwich
The only point I was making to the noble Earl, who normally grasps these points with considerable speed but unhappily does not appear to have done so on this occasion, is that there is a big difference, if he will forgive me for saying so, between a statutory code and a non-statutory code. We are now talking about a statutory code, and the last clause of the amendment gives the Secretary of State power to deal within a code of practice with such other matters as he considers appropriate.
It seems to me for the reasons I indicated—I do not want to go into the arguments again—that that is the best method of approach. I very much hope that on reflection the Government will agree.
§ Lord Richard
In view of the statement by the noble Earl that he is prepared to look at this matter and consider what has been said about it, and that a code of conduct is on the way in any case, and for all sorts of other attractive reasons as to why we should not pursue this matter further tonight, with your Lordships' permission I withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Moved accordingly, and, on Question, Motion agreed to.
§ House resumed.