Previous Section Back to Table of Contents Lords Hansard Home Page


Baroness Faithfull: My Lords, I thank my noble friend the Minister. We are all grateful for the amendments. However, perhaps I may make two points. First, if a child wants to vary or change the way in which he or she gives evidence, will the child be given the opportunity to do so? Secondly, in view of the amendments that are to follow and possible consultation between now and the next stage of the Bill, will my noble friend be willing to vary this amendment in the light of those that are to follow?

Baroness Blatch: My Lords, I touched on the point in relation to the situation where a child may wish to vary the way in which he or she gives evidence. We want as much certainty as possible. However, at the end of the day if a child decides that he or she wants to give evidence in a different way, that will need to be considered by the judge. If they are acceptable to the court and do not militate against the justice for the defendant (who is, after all, standing accused), I have no doubt that the new arrangements will be acceded to. However, the new arrangements at this stage will not include the arrangements set out in the proposals of the next set of amendments.

In relation to my noble friend's second point, it all depends on the way in which my noble friend feels that my amendment needs to be changed in the light of the following amendments. My understanding has always been that the binding rulings amendment, irrespective of what follows, is a freestanding amendment except for those that we have already spoken to.

Lord Ackner: My Lords, before the noble Baroness sits down, can I take it that she confirms that last-minute changes of heart by the child amount to, potentially, a material change of circumstances?

Baroness Blatch: My Lords, the binding ruling would determine the arrangements. If there was a last-minute change of heart, it would mean that there would need to be reconsideration by the judge of the arrangements and the degree to which he could accede to the desires of the child, so long as it was permissible within the arrangements set out in the Bill.

On Question, amendment agreed to.

Baroness Faithfull moved Amendment No. 109:


After Clause 50, insert the following new clause--

Video recordings of testimony from child witnesses

(".--(1) Section 32A of the Criminal Justice Act 1988 shall be amended as follows.
(2) In subsection (3), paragraph (a) shall be omitted.

5 Feb 1996 : Column 89


(3) After subsection (3) there shall be inserted--
"(3A) Where a video recording is to be tendered in evidence under this section the court may grant leave for a child witness to be cross-examined at a pre-trial hearing in informal surroundings at which only--
(a) the judge;
(b) counsel for the parties;
(c) an appropriate adult to accompany the child as set out in the rules of court,
shall be present in the same room as the child.
(3B) At any pre-trial hearing the defendant shall be permitted to see and hear the proceedings and to communicate with his legal advisors by such means as shall be laid down by rules of court.
(3C) The pre-trial hearing of the cross-examination of the child witness shall be video recorded and the video recording shall, with leave to the court, be tendered in evidence before the jury.".").

The noble Baroness said: My Lords, the purpose of this amendment is to enable children to give their cross-examination evidence at an early stage prior to the trial. The cross-examination will be video recorded and played at the trial. Under our current system, children have to wait for 10 months on average before they can be cross-examined on the evidence they provided in the video recorded interview. Prosecution cases can reach the transfer or committal stages within four to six weeks of the first disclosure interview. All the prosecution papers have to be with the defence by that time. If this amendment were implemented, the defence could be given a further four to six weeks to prepare for cross-examination of the child witness on video. This would reduce the waiting time for the child witness to an average of seven months. The amendment would not prejudice the legitimate rights of the defendant in any way. The welfare of child witnesses would be better protected and the interests of justice would be served because the child witness would be able to provide his or her possible evidence.

In moving this amendment I am referring also to Amendments Nos. 110 to 113A which will be spoken to by other noble Lords. Perhaps I may make some general comments. The Children Act 1989 lays down:


    "When a court determines any question with respect to ... the upbringing of a child ... the child's welfare shall be the court's paramount consideration".

But, on the other hand, the prime duty of the criminal court is for justice to be done. Therefore, there seems to be some conflict between the welfare of the child, on the one hand, and the need for justice on the other.

I have found that there are varying opinions as to whether the Criminal Justice Acts of 1988 and 1991 are working well. The Association of Directors of Social Services is dissatisfied with the present situation. I have also heard from all the childcare voluntary organisations, including the NSPCC and the National Children's Bureau. We are grateful for their help. The police also have some reservations about the present situation. At an interdisciplinary conference held by the Sieff Foundation at Cumberland Lodge in 1995 great divisions of opinion were expressed. It therefore seems that we need to look closely at reforming the law as it stands not only for children's sake but also for the sake of the accused.

5 Feb 1996 : Column 90

I am the chairman of the Faithfull Foundation, an organisation of which my noble friend the Minister is well aware and one with which she has helped me. It seeks to help men who want to return to their families but cannot do so because they must have treatment. The position is that a judge can make a probation order with a condition of residence at the clinic which we run. The men tell me that if a child will not give evidence because of fear--there are many such children--and if a child gives different evidence from the evidence-in-chief, the jury and the judge are in real difficulties. In a case where the accused is discharged, the man has said to me, "Where do I stand?" Indeed, where does he stand? Is he guilty or not guilty? The social services are in a great difficulty. Do they allow the child to go home or not? I thought that I should bring this matter to your Lordships' attention.

Opinions on the judicial side vary. Some circuit judges agree with the present situation and consider that it is working well in their courts. Others consider that it is not working well. There is a division of opinion among the QCs. At a dinner party the other night I was speaking to a QC. He disagrees with the present arrangements and wants changes. He is conducting research on the matter. It seems to me that after five years' experience we need to give careful consideration to the future. I wonder whether before the next stage of the Bill we might have interdisciplinary consultation between all those concerned with the welfare of the child and justice for the accused.

Amendment No. 110 is a new clause to which the noble Baroness, Lady David, will be speaking. She will also be speaking to Amendments Nos. 111 and 112. The noble Lord, Lord Acton, will be speaking to Amendment No. 113 and the noble Lord, Lord McIntosh of Haringey, will be speaking to Amendment No. 113A. I beg to move.

Baroness David: My Lords, I should like to support this group of amendments and have great pleasure in doing so, as I normally do like to support the noble Baroness, who takes such trouble about all these matters of children, justice and the courts.

I should like to say a word about Amendment No. 110. The purpose of the amendment is to give the court power to allow a video recording to be accepted as an alternative to written evidence in circumstances where a child witness cannot attend the trial. Leave can already be given under the provisions in Sections 42 and 43 of the Children and Young Persons Act 1933 for children to give written evidence in specified circumstances where they cannot attend a trial. Video taped evidence would allow the court to see and hear a child witness giving evidence. This is clearly a superior form of evidence to that which is already accepted. If the provisions in the Children and Young Persons Act 1933 were expanded to include video taped depositions we might well see these procedures brought to life whereas they are currently not used in our jurisdiction. This is in contrast to other jurisdictions, where broadly similar provisions are widely used. Video taped evidence would be a very substantial improvement, surely, on written evidence which is now allowed.

5 Feb 1996 : Column 91

I should like to move on to Amendment No. 111. The purpose of this amendment is to give the court power to order that advocates' questions should be put to the child by a person who is better able to communicate with the child and with whom the child feels comfortable--someone thoroughly experienced in dealing with children. This could apply to children with disabilities as well as to very young or very disturbed children. Once again, this amendment is based on the proposal from the Pigot Committee that a court could only grant leave in appropriate cases. I should like to emphasise that this amendment refers to very young or very disturbed children. The interlocutor might be a paediatrician, a child psychiatrist or a social worker. The role of that person would be similar to that of the interpreter in court where a witness does not know the language.

In other words, this provision would only be appropriate where the child witness would be prevented from giving a full account of his or her evidence were it not for the help of the interlocutor. Particularly vulnerable children who have been abused, such as children with learning difficulties, should not be denied the opportunity to take part as child witnesses in criminal proceedings.

It will be equally important to be certain that the defendant's interests are protected by ensuring that counsel for the parties decide what questions are to be put to the child. It will be for the judge to ensure that the interlocutor puts the questions in a neutral manner. This should ensure that Article 6.3.c of the European Convention on Human Rights is not contravened. The article states:


    "Everyone charged with a criminal offence has the following minimum rights...to defend himself in person or through legal assistance of his own choosing".

At present many vulnerable children who have been abused cannot be heard under our criminal justice system. Those children should not be denied the opportunity to be child witnesses in criminal proceedings. This amendment will help to give those children a voice in our judicial system. This is a very important amendment both for the child and for justice.

The third amendment I wish to speak to is Amendment No. 112. The purpose of this amendment is to ensure that the child witness is given an opportunity to express his or her views on whether they wish to give their evidence prior to the trial or wait until the trial. A number of us have been trying for a long time to get the views of the child accepted in various Bills and this again is another attempt to do so.

This amendment was debated in Parliament during our discussions on the Criminal Justice Bill in May 1991. It was said then that everyone agrees that it is best practice to take account of the wishes of the child when deciding how a child witness should give evidence. However, it was also said that the consultation does not need express provision in statute. But nearly five years later, those who have had the greatest experience of working with that Act, as it now is--and that means a great many people who are officers in the NSPCC--

5 Feb 1996 : Column 92

regrettably see at first hand how frequently the wishes and feelings of child witnesses are not known by the court and are not properly taken into account. All too often the lines of communication are so weak that basic information does not get relayed from the child to the judicial system or from the judicial system to the child.

The amendment will give child witnesses an opportunity to express their views at a level appropriate to their age and understanding. But it would not be for the child to determine the matter. It will remain the judge's responsibility to balance the interests of the parties and of justice in all the circumstances of the case.

If express provision were made for this consultation in the statute we would begin to see consistent, fair and equal treatment of all child witnesses across the country in relation to this issue. I would like to add that the Metropolitan Police see a very real need for counsel and judges to become far more child aware in their dealings with these cases.

Our present criminal justice system is not meeting the needs of children or of justice. The purpose of this group of amendments is to eliminate unnecessary stress which is caused to child witnesses. Reducing their stress will not only result in the positive benefit of protecting the child's welfare; it will also mean that the interests of justice will be served because the child witness will be more able to give his or her best possible evidence.

I support the noble Baroness. This is an extremely important group of amendments. Although I appreciate very much what the noble Baroness, Lady Blatch, has put forward in her amendment, I would like very careful consideration to be given to this very important group of amendments.

8.30 p.m.

Lord Acton: My Lords, I have put my name to Amendments Nos. 109 to 113, and I would like to speak to Amendment No. 113.

Under this amendment a child witness who has already been cross-examined under Amendment No. 109, to which the noble Baroness, Lady Faithfull, spoke, may be recalled by the court for a further out-of-court hearing. That would happen when it appears to the court to be in the interests of justice; for example, when fresh evidence comes to light. In this way the defendant's rights are preserved. The conditions at the second hearing would be the same as at the first hearing.

Thereafter, the defence can make an application for a further out-of-court hearing only if there has been a further material change since the second hearing. A significant proportion of children will undoubtedly not be recalled. Those children who are recalled will at least have had most of their cross-examination got out of the way and recorded on video at a much earlier stage. Moreover, they will have had the benefit of therapy thereafter.

In the interests of justice to the defendant, Amendment No. 113 forms an essential part of a scheme, with Amendment No. 109. Perhaps I may add that the Criminal Bar Association supports the principle of Amendments Nos. 109 and 113. I join with the noble Baroness, Lady David, in all that she has said as regards

5 Feb 1996 : Column 93

the amendment of the noble Baroness, Lady Blatch, and the group of amendments spoken to by the noble Baroness, Lady Faithfull.


Next Section Back to Table of Contents Lords Hansard Home Page