Q
213Mr.
Howarth: One of the arguments is that requiring the court
to follow sentencing guidelines—particularly in determining
tariffs, for example—would be an undue fetter on the discretion
of sentencers. Do you think the
phrase, “unless...it
would be contrary to the interests of justice to do so”,
is a weak
test or a strong
test? Paul
Cavadino: I think that it is a reasonable test. It is
clearly stronger than the current test. At the moment, legislation
requires courts to have regard to sentencing guidelines and to give
reasons if they are passing a sentence outside the range prescribed by
sentencing guidelines. This is a slightly stronger test. It requires
the court to follow the guidelines, unless it is satisfied that it
would not be in the interest of justice to do so. That seems to me to be
an entirely reasonable test. I cannot think of any other valid reason
for departing from the guidelines, and because it is slightly stronger,
I think that it would aid greater consistency and therefore reduce the
degree of injustice that results from inconsistency in comparable
cases. It would also help to aid predictability, which is important if
policy makers are to plan to resource the penal system in line with the
likely results of sentencing guidelines.
Q
214Mr.
Howarth: I wonder whether the remaining three witnesses
could comment on the suitability of that test for departure from the
guidelines. Professor
Hough: I think that it is a sensible
test—better than the previous one. The system proposed in the
Bill could never really be described as a set of tram
lines. Gillian
Guy: I think it is a test that will make sense to the
general public and to victims and witnesses. The aim that we would like
to see throughout this is to make things more transparent for those
people using the system.
Q
215Jeremy
Wright: Gillian Guy, can I ask you about special measures?
If any other witnesses want to come in, please feel free, but I suspect
this is more for you than for them. Clause 82, as you know, gives the
absolute right for witnesses in specified offences involving guns and
knives to have special measures when they give evidence, and, as we all
understand, the purpose of special measures is to enable witnesses who
are anxious or frightened, or otherwise concerned about giving
evidence, the opportunity to do so with certain extra help.
Is there any
logic, in your view, to making a specific category of offences eligible
for witnesses to have special measures, or is it more sensible simply
to say, as we do now, that if the witness can demonstrate particular
anxiety or concern, they should have the special measures, and if they
cannot they should
not? Gillian
Guy: This provision highlights the confusion around
the debate on special measures, or indeed the lack of a debate around
special measures. I think that the confusion arises from the fact that
evidence would be worse without them, but we do not talk about the fact
evidence is better with them. From our point of view, there are very
few witnesses who enter a witness box who are not in some way anxious,
at the very least, and who do not find the whole scenario and
experience quite difficult to deal
with. Our
contention is that in many circumstances, regardless of the actual
crime complained of, people would benefit from some form of special
measures. What has happened here is that a particular type of crime has
been identified—we know that a particular thing is going on in
society at the moment—where the Government have obviously felt
that, without anyone having to get through any degree of proof of that
anxiety, those special measures should be available. As I say, our
contention is that special measures should be designed for the
individual, and the individual—no matter what the crime, no
matter what their background or what might be perceived as their level
of vulnerability—should be afforded the ability to get special
measures, if that would make the evidence better. That is our
contention.
The difficulty
that we have is that we are not understanding what that debate is
about, such as whether it is about better evidence, whether it is about
wanting to put witnesses through the most difficult scenario in order
to test them thoroughly, where the boundaries of that treatment ought
really to lie—we act on behalf of defence witnesses as well as
prosecution witnesses, and the whole scenario involves getting to
justice and getting to the truth, hopefully—and whether we are
dealing with expense or difficulty in providing special measures, which
again almost brings us into the realms of rationing and how that is
dealt with. It is important that we understand what we are actually
aiming to
achieve. From
our point of view and experience with witnesses—we help 250,000
of them a year through the court process—we believe that justice
ought to be built around those individuals, so that they are
comfortable with giving evidence and the court gets the best possible
stab at the truth. In that context, we are most alarmed that in a year
18,000 witnesses, eligible under existing legislation for special
measures, were not identified as vulnerable and intimidated witnesses,
let alone trying to open up eligibility. Once you have eligibility, you
certainly have to be able to identify people and offer those measures.
Let us be honest about what we are trying to achieve
here.
Q
216Jeremy
Wright: You know that one of the arguments made against
special measures, in particular circumstances, is that they make the
defendant look more guilty when a witness is given certain measures
through which they can give evidence. To counter that argument, would
it be better for all witnesses, particularly those under the age of 18,
for example, to be entitled to special measures, as a matter of course,
so that no jury could look at a particular witness and say, “The
fact that that witness has special measures must mean that the
defendant is a little more
guilty”? Gillian
Guy: It assists the argument around allowing people
generally to understand the system and to get special assistance in
giving the best evidence possible. Obviously, it would not identify
particular defendants as being in cases where witnesses feel
particularly vulnerable. There would be a broad approach, which would
not act to the detriment of either party. As I say, however, making
then breaking that promise is worse than not making it in the first
place. We must ensure that we make good on the promise. We also have to
be clear, when we talk about special measures, that the whole gamut of
special measures does not apply to everybody. It offers what would help
in individual circumstances to help us get to the
truth.
Q
217Mrs.
Madeleine Moon (Bridgend) (Lab): I have a particular
question about the coroner’s duty to investigate, especially
following a violent death or a death by suicide in prisons. On the
issue of the prevention of further deaths, I am concerned that the
current system does not necessarily investigate fully the background to
the individual’s death and their history that perhaps led to
that death. I am aware of psychological autopsy studies that have
increased the background investigations into an individual’s
personal history. They have produced tremendous evidence in relation to
suicide in particular. What is your view on the best way to structure
investigations to give us far greater information and evidence to help
to prevent future deaths and which might even influence sentencing in
relation to deaths in custody? Can you comment on
that? Juliet
Lyon: I would like to respond to that both because we
run an advice and information service that responds to about 5,000
prisoners and their families each year and because I recently attended
an inquest with a mother who had been using that service. The inquest
was four years late. We have asked that consideration be given in the
Bill to limiting the amount of time that people have to wait, which
puts a huge strain on bereaved families. In the course of being asked
to represent herself, she was means-tested and had to consider
remortgaging her property in order to afford to discover why and how
her son died in prison. That concerns an omission in the Bill that we
would very much like amended. In answer to your specific point, in this
instance the young man was severely mentally ill and had been for a
long time. The inquest allowed us, from the prison gate onwards, to
understand what had happened to him once the sentence was passed. He
found it impossible to cope with custody. He was a very intelligent
young man and he found it very hard. He was put into a segregation unit
for his own protection and was dead within a matter of days. He was
facing a five-year sentence. We discovered in the course of the inquest
that the staff had left a plastic bag in his cell, which allowed him
the means to kill himself.
What was
missing, clearly—this is the point that you are
raising—is the question, “What about the decision to
imprison in this particular individual’s case?” There had
been information in court about his mental health history and a report
from a psychiatrist offering to take him in for further in-patient
treatment. He had a previous history of about 11 years of treatment. In
that case—it would not be true in every case—the
information about the decision to imprison would clearly have been
pertinent to understanding not only how that young man came to take his
own life in a very bleak situation in prison but the issue for other
vulnerable people, particularly mentally ill people, in similar
circumstances. It is a great regret that that could not be
investigated. It was a great regret to the coroner himself; he said
so.
Q
218Mrs.
Moon: Do you think that it would be helpful if there were
national guidelines to be followed in investigations so that consistent
information came through, rather than leaving it to individual coroners
to conduct their own form of investigation? Do we need to establish the
nature of the issues to be investigated? Professor Hough, with your
research experience, can you comment on
that? Professor
Hough: I am not in a position to comment on those
issues at
all. Juliet
Lyon: The only issue with guidelines is that one
would still have to take clear account, obviously, of the individual
and their
circumstances.
The
Chairman: For practical purposes, I will move on to live
links.
Q
219Mr.
David Kidney (Stafford) (Lab): In a moment, I will ask the
witnesses about the significance of removing the safeguard of requiring
the consent of the accused before using live links. First, though, will
John Thornhill and Gillian Guy say something about the present use of
live links and the existing law? How does it work practically in
magistrates courts, and are there any
implications for the delivery of justice? Gillian, what is the
experience of victims of crime with access to live
links? John
Thornhill: Many courts now conduct cases, sentences
and administrative hearings over live links. We have found no serious
problems with them so far, and no problems have been reported to us.
Clearly, there are concerns about whether the defendant fully
understands what is happening. There are issues about the defendant not
wishing to engage, and how we manage that particular situation.
Contempt of court issues may arise, and that is something that we need
to look at. In principle, at the moment, we find no serious problems
with them, but we are concerned about the defendant’s ability to
say that they do not want to be involved. That is what concerns us in
the proposed
legislation. Gillian
Guy: The experience thus far has been that they have
been broadly welcomed. They are a way to ease the situation of giving
evidence, which is the aim. The issues have been around early decisions
about whether live links are to be used or not, so that witnesses can
get to grips with what that means, whether they have been successful in
giving that facility, consistency in their availability and an
explanation of what they actually mean. For example, there are
certainly witnesses who did not have a full explanation and thought
that they could not be seen. They were shocked to find that that was
not the situation. It is really about early application, early decision
and early explanation. Live links are but one method of helping people
feel at ease with the
process.
Q
220Mr.
Kidney: That is helpful to start with, but can I now go
through the witnesses? Juliet Lyon, I do not think that the written
response that you sent us covers that particular point. A lot of the
links are from prison to court. Do you have concerns about changing the
present system by removing the consent, and if so, can you suggest any
safeguards in its
place? Juliet
Lyon: We have not covered it in our written evidence.
I have some concerns about the permission being removed. That would be
the issue. The other issue, which overlaps with information that we
provided, was under clause 87, which discusses examination of the
accused through an intermediary. Having just conducted three years of
work on people with learning disabilities and learning difficulties in
prison, we are acutely aware how many people have gone through the
criminal justice system not fully understanding their role in it or the
procedures at police stations, at courts or after they enter prison. We
welcome some of the suggestions for improving information, which would
be relevant here. There are issues that arise prior to that, such as
fitness to plead. They are not in the Bill at the moment and need to be
reinforced.
Q
221Mr.
Kidney: Others are expressing concerns about the potential
for the abuse of prisoners. First, they would not be seen because they
did not appear in court, and they could be subjected to subtle pressure
to plead in a way that they might not plead in a courtroom. Do you
share those concerns?
Juliet
Lyon: It is difficult because you need room for
flexibility, which is hard to get. It is vital for some individuals to
be in court so that they can see, and
contribute to, the procedure. For others it is pretty intolerable. Some
face an immensely long journey—people are held further and
further away from the court of committal—and all the rigmarole
that that involves. Pragmatically, it is often best that they do not
appear, but you need to have flexibility. Taking away the permission is
potentially
problematic.
Q
222Mr.
Kidney: Gillian Guy, do you welcome the change and do you
have any concerns about it?
Gillian
Guy: The concerns are in terms of ensuring that
justice is seen to be done. That is clearly about ensuring that the
procedure is in the best interests of getting to the truth, but it is
also about expediting the procedure. Some of the damage that is
inflicted on witnesses and victims is often because of the long
drawn-out process of trying to get into courts in the first place and,
as Juliet said, the long travelling distances involved. People
sometimes hang around for days and have to go backwards and forwards,
and that does not help the situation or people’s anxiety.
Expediting the procedure has
helped. Arriving
at a decision quickly is good for witnesses, but I do not think that we
want to lose the primary objective of justice by overriding the rights
of the defendant. The decision ought to be made in the interests of the
case, not the individual.
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