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Lord Monson: Before the Minister sits down, can she say whether she is in a position to tell us whether the phrase "a real possibility" appears in any existing Act of Parliament?

Baroness Blatch: No, I am not able to say. However, when courts are making judgments and having to consider whether there is a real possibility that such action might have led to an acquittal, I believe that the present wording provides a more severe test than the one suggested by the noble Lord, Lord Airedale. For the reasons just outlined by the noble Viscount, I believe that the present words are more acceptable.

Lord Airedale: I wish that we heard more frequently from the noble Viscount, Lord Colville. The Minister always produces a full answer; indeed, she does not believe in leaving stones unturned. I must read the Hansard report of her response. In any event, I would not want to divide the Committee on a drafting matter.

Baroness Blatch: I am grateful for what the noble Lord said. Of course we too will read the Hansard report of the proceedings. I should add that I have been prompted to say that the wording appears in the Criminal Appeal Bill 1995.

Lord Airedale: In the circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 138 and 139 not moved.]

Baroness Blatch moved Amendments Nos. 140 and 141:


Page 25, line 33, at end insert--
("(c) an offence of aiding, abetting, counselling, procuring, suborning or inciting another person to commit an offence under section 1 of the Perjury Act 1911.").
Page 25, line 38, leave out ("made by statutory instrument").

On Question, amendments agreed to.

Clause 38, as amended, agreed to.

Clauses 39 to 41 agreed to.

Clause 42 [Restriction on reporting of certain assertions]:

19 Dec 1995 : Column 1586

Baroness Blatch moved Amendment No. 142:


Page 27, line 19, leave out from ("where") to end of line 29 and insert ("a person has been convicted of an offence and a speech in mitigation is made by him or on his behalf before--
(a) a court determining what sentence should be passed on him in respect of the offence, or
(b) a magistrates' court determining whether he should be committed to the Crown Court for sentence.
(1A) This section also applies where a sentence has been passed on a person in respect of an offence and a submission relating to the sentence is made by him or on his behalf before--
(a) a court hearing an appeal against or reviewing the sentence, or
(b) a court determining whether to grant leave to appeal against the sentence.").

The noble Baroness said: In moving the amendment, I shall, with the leave of the Committee, speak also to Amendments Nos. 143 to 150.

The first amendment extends the provisions of the clause to cover an application for leave to appeal because derogatory assertions may also be made at that stage. The next three amendments clarify the operation of the provisions for interim and full orders. When an assertion is first made, the court will not be in a position to judge whether a full restriction order would be justified. The amendments therefore provide that an interim order can be made if "there is a real possibility" that the assertion is derogatory and false or irrelevant. Having heard the rest of the mitigation, and perhaps having made inquiries, the court will need to decide whether a full order is justified. The Government agree with the Royal Commission's recommendation that the power should only be used as a last resort. The test for a full order is accordingly higher, requiring that there are substantial grounds for believing that the assertion is derogatory and false or irrelevant.

The fifth amendment is designed to limit the burden on the court of establishing whether an assertion, which might be subject to an order, has been made in earlier proceedings. The present draft might require extensive inquiries to be made. That is unnecessary. The amendment makes clear that the test should be that it "appears to the court" that the assertion has not previously been made.

The final four amendments define and limit the points at which orders can be made. Orders will be made just before or just after a determination with regard to sentencing. The amendments clarify what is meant by a determination with regard to sentencing in the various circumstances envisaged in the Bill. They also make clear that it will not be possible for such orders to be made a long time after such determinations. The amendments are all designed to improve the drafting of the Bill. I commend them to the House. I beg to move.

8 p.m.

Lord McIntosh of Haringey: We are, of course, grateful to the Minister for her explanation of this group of amendments. However, I think she will recognise that what she has done is to rewrite completely Clause 42. The procedure she has adopted in earlier cases when she has had completely to rewrite a clause--there have been quite a few of them--has been to take out the clause

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and propose an alternative. It really would have been much easier as regards our understanding of Clause 42 if she had adopted that procedure at this stage rather than give us nine amendments which take out huge chunks of the clause and propose new wording for much of the rest. I simply do not have the capacity to redraft Clause 42 in the light of these amendments in the time available. I feel that we have not been well treated as regards the way these amendments have been prepared. There has been concern about Clause 42. The guild of editors has written to me about the overbearing nature of the restrictions and I have no doubt that it has written also to the Minister. I have no doubt the Minister considered those representations. It may be--although the Minister has not said so--that the guild of editors' representations are reflected in these amendments but I have no way of knowing. I am sorry to say that we shall have to return to this matter on Report.

On Question, amendment agreed to.

Baroness Blatch moved Amendments Nos. 143 to 150:


Page 27, line 29, at end insert--
("(1B) Where it appears to the court that there is a real possibility that an order under subsection (6) will be made in relation to the assertion, the court may make an order under subsection (5) in relation to the assertion.").
Page 27, line 30, after ("are") insert ("substantial").
Page 27, line 36, leave out ("(5) or").
Page 27, line 39, leave out ("that assertion has previously been") and insert ("it appears to the court that the assertion was previously").
Page 28, line 4, leave out ("decision") and insert ("determination").
Page 28, line 8, leave out ("decision") and insert ("determination").
Page 28, line 10, leave out from first ("made") to end of line 11 and insert ("after the court has made a determination with regard to sentencing, but only if it is made as soon as is reasonably practicable after the making of the determination").
Page 28, line 29, at end insert--
("(9) For the purposes of subsections (5) and (6) the court makes a determination with regard to sentencing--
(a) when it determines what sentence should be passed (where this section applies by virtue of subsection (1)(a));
(b) when it determines whether the person should be committed to the Crown Court for sentence (where this section applies by virtue of subsection (1)(b));
(c) when it determines what the sentence should be (where this section applies by virtue of subsection (2)(a));
(d) when it determines whether to grant leave to appeal (where this section applies by virtue of subsection (2)(b)).").

On Question, amendments agreed to.

Clause 42, as amended, agreed to.

Clause 43 agreed to.

Clause 44 [Reporting of assertions: commencement and supplementary]:

Baroness Blatch moved Amendment No. 151:


Page 29, line 24, leave out ("made by statutory instrument").

On Question, amendment agreed to.

19 Dec 1995 : Column 1588

Clause 44, as amended, agreed to.

Baroness Blatch had given notice of her intention to move Amendment No. 152.


After Clause 44, insert the following new clause--

("Child witnesses
Television links and video recordings

.--(1) In section 32 of the Criminal Justice Act 1988 (evidence through television links) the following subsections shall be inserted after subsection (3B)--
"(3C) Where--
(a) the court gives leave for a person to give evidence through a live television link, and
(b) the leave is given by virtue of subsection (1)(b) above,
then, subject to subsection (3D) below, the person concerned may not give evidence otherwise than through a live television link.
(3D) In a case falling within subsection (3C) above the court may give permission for the person to give evidence otherwise than through a live television link if it appears to the court to be in the interests of justice to give such permission.
(3E) Permission may be given under subsection (3D) above--
(a) on an application by a party to the case, or
(b) of the judge's own motion;
but no application may be made under paragraph (a) above unless there has been a material change of circumstances since the leave was given by virtue of subsection (1)(b) above."
(2) In section 32A of the Criminal Justice Act 1988 (video recordings of testimony from child witnesses) the following subsections shall be inserted after subsection (6)--
"(6A) Where the court gives leave under subsection (2) above the child witness shall not give relevant evidence (with the meaning given by subsection (6D) below) otherwise than by means of the video recording; but this is subject to subsection (6B) below.
(6B) In a case falling within subsection (6A) above the court may give permission for the child witness to give relevant evidence (within the meaning given by subsection (6D) below) otherwise than by means of the video recording if it appears to the court to be in the interests of justice to give such permission.
(6C) Permission may be given under subsection (6B) above--
(a) on an application by a party to the case, or
(b) of the judge's own motion;
but no application may be made under paragraph (a) above unless there has been a material change of circumstances since the leave was given under subsection (2) above.
(6D) For the purposes of subsections (6A) and (6B) above evidence is relevant evidence if--
(a) it is evidence in chief on behalf of the party who tendered the video recording, and
(b) it relates to matter which, in the opinion of the court, is dealt with in the recording and which the court has not directed to be excluded under subsection (3) above."
(3) This section applies where the leave concerned is given on or after the appointed day.
(4) The reference in subsection (3) to the appointed day is to such day as is appointed for the purposes of this section by the Secretary of State by order.").

The noble Baroness said: I am sorry if there is some confusion over this amendment. That results from a discussion during the course of our debates on the Bill between my noble friend Lady Faithfull and the noble and learned Lord, Lord Ackner, who is not present in the Chamber at the moment. There was an attempt to arrange a meeting prior to this stage of the Bill but that

19 Dec 1995 : Column 1589

did not succeed. Further, an associated amendment is a new amendment and was tabled late. I saw sight of it this morning. A request has been made by my noble friend and the noble and learned Lord, Lord Ackner, to have a full discussion on these amendments. They asked whether I would agree to withdraw my amendment on the understanding they would withdraw theirs without prejudice to the outcome of any discussions. We would be free either to return with our amendments on Report or come to some accommodation in the meantime. I accepted the suggestion of my noble friend and the noble and learned Lord, Lord Ackner. Therefore, I shall not move the amendment.


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