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Mr. Leslie: I wish to put on the record on behalf of the Government my strong belief that the lay magistracy who deal with family matters at present are entirely capable. They do an excellent job of running things, and they stand in judgment on family
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matters with confidence and the appropriate skills and judgment. We rightly have high confidence in the ability of the lay magistracy to handle complex and demanding family work.
Mr. David Kidney (Stafford): I join my hon. Friend the Minister in paying tribute to the magistrates. However, they will sometimes recognise, often at an advanced stage in delicate family proceedings, that they are not the right people to be hearing a case because complexities have developed during the proceedings. At present, they have to transfer that case to a higher court for one of the kind of judges whom we are discussing. Would it not be better if they could bring the judges in, and thereby save a lot of delay? Is that not what the clause aims to do?
Mr. Leslie: My hon. Friend makes a valid point. Shortly, I will look at one example that illustrates why we need the provision.
We want to allocate more family work to family proceedings courts, but we must also achieve the most effective and efficient distribution of caseload by ensuring that cases are heard at the lowest tier of court commensurate to their nature and complexity. That chimes in with my hon. Friend's point.
Clause 66 deals mainly with criminal proceedings, in which it might be convenient for a circuit judge sitting in the Crown court to turn himself into a district judge at magistrates court level to deal with a summary offence. We believe that, wherever possible, there should be consistency across jurisdictions, which is why the clause also applies to family proceedings. It is not, however, expected that extensive use would be made of those powers in family cases.
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I shall give a practical example of when the clause might come in useful. The Government are considering whether to introduce specialist combined family centres, comprising co-located county and family proceedings courts. If, for example, a district judge at a magistrates court with a full list of family cases were to fall ill, the clause would enable a deputy circuit judge or a circuit judge to take on the case load if no other district judge at magistrates court level were available. That would help to reduce delays when the majority of listed cases could still be heard.
Opposition Members asked for more details about the selection process and the skills that some of the senior judiciary might bring to those limited areas in which we foresee the provisions applying to family cases. Although subsection (4) makes it clear that all High Court judges could be eligible, it also requires circuit judges to be specially nominated by the president of the family division. We understand that he would only make appropriate nominations, particularly for more qualified junior judges. That is the practical way in which skills would be matched with particular cases. That would also give a measure of protection if other members of the judiciary heard family proceedings cases. I hope that my assurance allays the concerns and that amendments Nos. 70 and 71 will be withdrawn.
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Mr. Hawkins: It was worth while getting the Minister's assurances on the record. I, too, share the Minister's tribute, which was echoed by the hon. Member for Stafford (Mr. Kidney), to those members of the lay magistracy who currently deal with family law cases. Their specialist knowledge, which they use when sitting on a family law panel of magistrates, is much appreciated by all court practitioners. In the light of Minister's reassurances, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 66 ordered to stand part of the Bill.
Clauses 67 and 68 ordered to stand part of the Bill.
Clause 69
Criminal Procedure Rules
Question proposed, That the clause stand part of the Bill.
Mr. Kidney: It is a pleasure to serve on a Committee under your watchful eye, Mr. O'Brien, and your firm but fair manner of dealing with proceedings.
I should like to talk about two points about which I and other commentators have been concerned in the past. The first is about the trial of young persons charged with very serious offences. The second is whether there is a possibility of laying in children's proceedings when a criminal trial is taking place at the same time. Both points are relevant to the clause, which deals with a court's powers to make rules in criminal proceedings. They are also relevant to clauses 75 and 76, which deal with the similar power to make rules relating to family procedure rules.
My first concern is about prosecuting children for serious offences. People may recall from the trial of the killers of Jamie Bulger and the subsequent referral to the European Court of Human Rights the nature of proceedings in a Crown court for very young persons who are accused of serious offences. I am not suggesting that they are given an easy ride. According to the terms of our justice system, which assumes that people are innocent until proven guilty, people who appear in court should be spared
''avoidable intimidation, humiliation or distress.''
I take those words from the overriding principle contained in the Lord Chief Justice's practice direction of 16 February 2000, which was the result of the consideration of our Crown court procedures by the European Court of Human Rights.
Hon. Members may recall some of the directions that the Lord Chief Justice set out: where possible, the defendant should sit at the same level as the rest of the court; defendants should be free to sit with members of their family; proceedings should be explained to defendants as they go along; there should be frequent and regular breaks; robes and wigs should not be worn unless the defendant asks for them to be worn; restrictions should be imposed on the number of people attending a trial; and, although facilities for reporting the trial must be provided, consideration should be given to restricting the number of reporters present in the courtroom. Those directions were given in an attempt to ensure that there is a fair trial.
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Concerns are often expressed that the great panoply of the Crown court venue would have difficulty fitting in with those directions. On many occasions, the youth court might be a more defendant-friendly venue for such trials. It might be more appropriate for the Crown court to agree to sit in the youth court.
Gareth Thomas (Clwyd, West): I am interested to hear my hon. Friend developing his points, speaking as he does from his experience as a solicitor. On the question of court apparel, he will be aware that that is the subject of some controversy, not only within the legal profession but society at large. Does he take the view that it would be appropriate not for the profession so much but for the Government to take a view as to the appropriateness of the ancient apparel that the profession requires barristers to wear?
The Chairman: May I draw hon. Members attention to the fact that we are now discussing ''Criminal Procedure Rules''? I have not heard them mentioned yet. Will the hon. Gentleman address the clause?
Mr. Kidney: Thank you, Mr. O'Brien. You have saved me from going down an avenue that I do not wish to go down even though my hon. Friend requested me to do so.
At present, for serious charges against very young defendants, the direction of the Lord Chief Justice is the guiding rule for our courts. When the criminal procedure rule committee comes to make its rules, it would like to examine the Lord Chief Justice's practice direction and consider whether it should go further than that and make rules that embed those principles in the system. It wants to go a step further and consider saying that the youth court is, more often than not, a better venue than a Crown court building for the trials of these particular cases. I note that section 78 of the Supreme Court Act 1981 states that a Crown court may sit at any other place in England and Wales. Clearly, that includes sitting in a youth court. Clause 30 proposes that magistrates courts can sit in places other than the usual court, so the legislative network exists to allow trials to take place in the most appropriate venue for a fair outcome to the trial.
I am also concerned about those tragic cases in which young children are seriously injured while in the care of their parents as a result of physical and violent assault, sexual assault or a course of behaviour that affects them mentally rather than physically. In such cases, the criminal authorities often take the view that there should be a criminal prosecution of the parents for the alleged conduct. At the same time, the local authority will wish to protect the children, so it might take them away from the parents and begin care proceedings in the family courts—usually the local magistrates court sitting as a family court.
My hon. Friend the Member for Clwyd, West (Gareth Thomas) said that I was a solicitor. I am not practising at present, but I was a solicitor for 20 years and I dealt with many children's cases. In such cases, I found that the care proceedings involving the children were usually delayed for many months—if not for more than a year—until the criminal trial took place to see whether the parents were found guilty of the conduct that had damaged the children. The usual
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reason given for that delay was that the parents were restrained from presenting their full case in the care proceedings because they had a right not to incriminate themselves in any criminal matter that was about to be dealt with in the criminal court. Often, the criminal trial had to take place first, and it took a long time because of the complexities of the case, so the children were left drifting in care for a long while. No permanent plans for them were made until there was a result to the criminal trial: only then could there be an end to the care proceedings. I am concerned about that. My plea with regard to the criminal procedure rules—and the family procedure rules, which we will come to later—is that we address that problem. It is unacceptable because the Children Act 1989 states that the welfare of the child comes first, and delay causes harm to children's development.
There have already been judicial attempts to stop that delay. In the Re TB (Care Proceedings: Criminal Trial) case in the Court of Appeal in 1995, Lord Justice Butler-Sloss said:
''Each case has to be seen on its own facts and considered on its own merits, and the welfare of the child has to take priority over the detriment to the family who are coming up for trial . . . One starts with the fact that the criminal proceedings of themselves are not a reason to adjourn the care proceedings.''
She went on:
''There is a Home Office circular that deals with any delay of civil proceedings pending the outcome of a criminal trial so that the criminal court shall be notified of the importance of bringing on that criminal trial as quickly as possible.''
Therefore, Lord Justice Butler-Sloss stated that the care proceedings should not automatically be held off for the criminal trial and, in any case, that the criminal court should be informed that something urgent is waiting on the outcome of such a trial so that the criminal proceedings can be expedited.
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