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Lord McIntosh of Haringey: My Lords, I rise to speak to Amendment No. 113A. I was not involved in this matter before. I came into it because I had the good fortune to be invited by the Minister and the noble Baroness, Lady Faithfull, to what I found to be a very interesting and helpful meeting at which the NSPCC and the Home Office officials concerned with these matters were able to exchange views very freely and openly. I have no professional or personal knowledge of what happens in court, and therefore I do not have any view about the other amendments in particular. However, it was brought home to me by that discussion that one of the most important keys both as regards the civilised way to deal with child witnesses and the quality of evidence, and therefore the quality of justice, was that the delay between the offence and the child giving evidence at the trial should be as short as possible. I understood that in many cases a trial takes place and the child gives evidence eight months, 10 months or even more than a year after the offence has taken place and the charge has been laid. That is both unfair to the child in that it cannot embark on any programme of therapy or help and also unfair to justice and the defendant in that the child's memory is likely to become less accurate and its confidence in giving evidence is likely to be less.
Therefore, it seems to me that the key to this matter, whatever the justice or otherwise of the other proposals, is to bring these cases to court as quickly as possible. I am confirmed in that view by the letters from the Lord Chief Justice and the Minister to the noble Baroness, Lady Faithfull, which came together. The Lord Chief Justice confirmed that his object was to bring these cases to trial as quickly as possible.
It seems to me that there is only one way to bring cases on quickly, and that was confirmed by the transfer of trial debate which we had earlier this evening; namely, to set time limits. Unless there is a time limit, we shall get into the classic situation where there is no listing of the case because there is no assurance that the defence and the prosecution are ready. The defence and the prosecution do not conclude their case because there is no listing and therefore nothing happens. If there were a fixed timescale as proposed in Amendment No. 113A, with the provision, as shown in the second part of the amendment, for that to be varied with the approval of the court, then everyone would know that the case had to be prepared, as I am sure that it can be, so that the children can give evidence as quickly as possible and be released to get on with their lives and with whatever therapy is necessary. I strongly support Amendment No. 113A.
Lord Ackner: My Lords, the noble Baroness, Lady David, referred to our debate in May 1991 when we considered the question of fully implementing the Pigot Report. I supported the amendments that were designed for that purpose and was able to tell the House that the Council of Her Majesty's Circuit Judges supported Pigot both when the report came out and despite the criticisms
I also attended the meeting to which the noble Lord, Lord McIntosh, referred, and at that stage had assumed that the present support for the full implementation of Pigot continued to exist, particularly as one of the circuit judges who had been in communication with the noble Baroness, Lady Faithfull, had indicated that. It was following the meeting called by the noble Baroness, Lady Blatch, that I learnt that the Lord Chief Justice had asked Lord Justice Rose to confer with his group to discover the attitude to having cross-examination earlier, and before the trial. The information which we received, and which was recorded in the letter from the Lord Chief Justice to the Minister, indicated that the judges consulted by Lord Justice Rose were not in favour of the proposals.
The judges who are at the sharp end of the subject are the circuit judges. Therefore, anxious to see whether there had been a change in the reaction of the Council of Her Majesty's Circuit Judges, I recently got in touch with the president, his Honour Judge Fawcus, who got in touch with Judge Balston, the chairman in charge of the committee concerned with this aspect of law reform. In the very limited time available, he sought views. Some of the views were provided under a misconception that the proposal was that within days of the completion of the video of the evidence-in-chief the defence should be obliged to cross-examine. That was never the proposal. The proposal always was that that should happen as soon as the defence was ready to cross-examine. That might be a matter of even two or three months. As the noble Baroness, Lady Faithfull, said, there is a degree of split between the judges as to how the present system is working. All of them agree that a balance has to be held between the interests of the child witness and fairness to the defendant. The question is how to achieve that balance.
One of the factors which is holding up the speedy implementation of trials is the public interest immunity plea which is taken in regard to local authority documents where the child is in care because the defence wishes to see whether there is any material which relates to the defence. The public interest immunity plea is then taken and the unfortunate judge has to wade through a mass of documents to see to what extent the plea is valid and to what extent there is material which will assist the defence.
I very much agree with the proposal of the noble Baroness, Lady Faithfull, that more minds have to be brought to bear on this question. Experiences need to be exchanged and consideration must be given to trying to expedite the hearing because the answer to the rival views is accepted by them to be, "Get the hearing on as soon as you can and then the question of having the cross-examination prior to the trial won't arise".
I should like to make one final point with regard to the proposals. The bogeys that are always produced are that you have the cross-examination and everybody is happy, but that all of a sudden new material comes onto the scene and the child has to be recalled, and then more new material comes onto the scene and there are further recalls and recalls. That is not how I envisaged it at all. If there has to be a recall, I have always assumed that that recall will take place at or very close to the trial because if further requests for cross-examination arise, those are all grouped together.
However, there is a danger of over-exaggerating the risk of recall. One is not dealing with many potential defences. The question of consent does not arise as it does with many sexual offences. The issue often may be: did it ever happen at all? Is it a case of childish imagination? Was it the defendant who was the guilty party or some other person? That does not throw up many potential fields for further cross-examination once cross-examination has taken place at a time when the defence is confident of being able to exercise it. Therefore, as I have said, I support very much the noble Baroness, Lady Faithfull.
Viscount Brentford: My Lords, perhaps I may briefly support the amendments and make one or two additional points that have not yet been made. Although I support Amendment No. 108, I believe that there are some significant additions in the current group of amendments which I should like to see incorporated into the Bill. As the noble and learned Lord, Lord Ackner, rightly said, we are pressing for fairness and justice between the prosecution, the defendant and the child witness. Clearly, it is a question of balance. Although the prosecution and the defence will have their members of the Bar with them, the main problem with which we are all concerned is the welfare of the child. That is the most tricky point to resolve.
Various points have been made to me in my discussions with people who are expert with young children. First, where there is a long delay, it is perfectly possible for a child who has had a nasty experience to be able, as a self-defence mechanism, to blot the memory right out of his or her mind. That means that, although the child will give evidence on a video shortly after the event, if six months then pass before recall, the child may quite truthfully have no recollection of the event. That does not mean that the child has had therapy and has been cured of the trauma of the disastrous event, because it will resurface later. It means that the later bout of evidence will be unreliable. Therefore I urge that we do our utmost to ensure speedy events and for any recall evidence to be unable to contradict what was said previously. I have been given examples of how that has wrecked cases.
I should like to emphasise the need to have any child hearings, whether videoed or not, in informal surroundings. While I do not press for judges to wear jeans and a teeshirt to hear a matter involving a child, I press for an informal room, with the parties not wearing
That is the right and proper way in which we should be going. Therefore I end where I began: in the pursuit of fairness these amendments are important. I hope that further consultations will bear fruit before Third Reading. I warmly support the principles embodied in the amendments.
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