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Lord Dholakia: I thank the noble Lord for that explanation. I hope that there will be guidance notes to accompany this Act and that the point about safeguards will be clearly identified. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

5.15 p.m.

Lord Rix moved Amendment No. 69:

Page 12, line 30, at end insert--
("or both").

The noble Lord said: I wish to point out that this piece of legislation displays a tendency towards grouping people into two camps: children who require special measures because they are children; and people with a learning disability or mental health problems who require special measures because of their disability or illness. By adding a provision to indicate that a witness may require special measures because he or she has a learning disability and because he or she is a minor will prevent learning disabled children from falling between those two stools.

I am particularly concerned about 17 year-old witnesses with learning disabilities. I realise that learning disabled children will be included in the legislation under the general heading of "children". However, I feel that there is a need for a positive reinforcement of their presence since they often seem to be invisible in the legal process. I beg to move.

Lord Windlesham: We have slid seamlessly from youth offender panels on to the totally different and vitally important matter of the conduct of criminal trials and the position of vulnerable and intimidated witnesses.

I wish first to make some general observations on this part of the Bill. I think it is more appropriate to do so on this amendment than on the previous one dealing with the age at which young people can obtain the special protections that the Bill provides.

We can all agree, I hope, that the balance between the interests of victims and the rights of the accused in a criminal trial is uneven. The accused has rights guaranteed by law or procedural rules. It is proper that a defendant should have safeguards against the abuse of power. However, until recently, the interests of the victims, falling short of formal rights in an enforceable sense, were accorded lesser recognition. This part of the Bill is an important step towards re-adjusting that balance.

At Second Reading I declared an interest as president of Victim Support. I repeat that declaration now. Since 1991, Victim Support has been creating a national witness service to assist the victims of crime and their families and friends in every Crown Court in the country. I believe that there are now 86 Crown Court centres where Victim Support provides that service.

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It is funded by the Home Office. A fruitful partnership has been developed, with trained volunteers offering support and information to over 120,000 victims annually before, during and after hearings in court. More recently that has been supplemented with a similar service in 130 magistrates' courts. We are now near the end of what I hope will prove to be positive negotiations with the Government to extend that service to all magistrates' courts. There is thus a realistic prospect of a further extension taking place in the future.

Because of this work, Victim Support, in the person of its highly respected director, Helen Reeves, was the only non-governmental organisation invited to take part in the interdepartmental working party on vulnerable and intimidated witnesses, on whose report this part of the Bill is based. The report was published in June 1998 under the title Speaking Up for Justice.

It will be no surprise that Victim Support should welcome the potential improvements in the handling of vulnerable and intimidated witnesses, although it has made a number of comments. The most important refer to the structure of Clauses 16 and 17, which are the subject of these amendments. They depart from the working party recommendation which would have made eligibility for assistance automatic for all category A witnesses, which is, broadly speaking, those who fall within Clause 16 of the Bill, including witnesses under the age of 17, which was the subject of the previous amendment, and discretionary for category B witnesses, broadly those within the scope of Clause 17 of the Bill.

My main purpose at this stage, as we begin consideration of these clauses, is to ask the Government to explain their reasons for not following in the drafting of the Bill the approach which was proposed by the working party of their own officials. We may be informed by the noble Lord that it is a matter of drafting, but what appears in the Bill is a far more legalistic approach, turning on the test of "improving"--that word is used in some places--or "not diminishing" the quality of evidence. This is a concept which many victims will find hard to comprehend and it may be that even in this House we shall need some explanation from the Minister in order to understand how the test will be applied in the courts.

Lord Williams of Mostyn: Perhaps I may deal with the point of the amendment in the name of the noble Lord, Lord Rix, and two other noble Lords, which is quite short: at page 12, line 30, to include "or both". It is clear in the Bill--and indeed explicit in Clause 21(1)--that the court may consider a witness eligible for assistance on various grounds, and not simply one. Clause 16 merely provides that, if the court is satisfied that a witness fulfils either part of subsection (1), he or she will be eligible to apply for special measures.

I hope I can give the noble Lords, and in particular the noble Lord, Lord Rix, some comfort by saying unambiguously that I would expect an application made in respect of a child who had a degree of disability to be made under both parts of subsection (1) and for it to set out why the child needs particular measures because of age and disability. The child would then benefit from

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the presumption under Clause 21 that a video recording of his evidence-in-chief would be admitted and that he would give further evidence by live link. At the same time, the application could set out why different or further special measures might be needed because of the child's disability and would continue to be needed even if he were to reach the age of 17.

I entirely accept that it will be extremely important to ensure that lawyers preparing applications understand that they can be made on several grounds. I believe that that is best achieved through guidance and training.

The noble Lord, Lord Windlesham, generously paid tribute to what the Government have been doing in support of a most worthy organisation, which I personally have supported over many years, and I join with him in his well-deserved tribute to the director, Helen Reeves. He mentioned funding. I believe that the Government have a good record over the past 18 months of increased funding to Victim Support. I think he was putting a fly over my nose to see whether the discussions which he described as positive might not be the subject of an announcement. There will be an announcement quite soon and it is probably left for the Home Secretary to make it. We certainly realise that the role of the victim has been inadequately thought about. Organisations such as the NSPCC have done a good deal along the lines that the noble Lord, Lord Windlesham, indicated.

In Speaking Up for Justice it was said that children who may be obviously disadvantaged and those who have a mental or physical disability should automatically have special measures. Paraphrasing the noble Lord rather brutally, his question was, "Why can we not have those measures automatically?" We want to focus the measures on those who really need them so that they will be available only if the court considers that they will improve witnesses' evidence. The court will then have to be careful and discreet in examining which measure, or combination of measures, will best serve the witness's needs.

My understanding is that those who may have a physical or mental disability, or both, do not wish to have an exclusive list because, whatever one has by way of list, one is bound to leave someone out and second thoughts perhaps make the system inflexible. It will be something of a culture change for many who sit in court, but we want the courts to be much more open-minded and alert to the fact that what the courts want is the best evidence and that simply relying on the procedures of the 19th century, perhaps, is not sufficient. We believe that this provision gives a flexible power to the court. I stress that I believe that guidance, training and encouragement have a good deal to offer.

With specific regard to the amendment, I do not think that the noble Lord, Lord Rix, needed it. I think he may well have recognised that he did not need it and I hope that the assurances I have given him have fulfilled his purpose.

Lord Rix: I am grateful to the Minister for those assurances, which I shall be able to read in Hansard tomorrow morning and wave in front of my officials at

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MENCAP and other organisations. I cannot answer for the noble Lord, Lord Windlesham, for whose broad support on this matter I am grateful, but, with the assurances of the Minister ringing in my ears, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Williams of Mostyn moved Amendment No. 69A:

Page 12, line 35, leave out ("suffers from") and insert ("has a").

The noble Lord said: Grouped with Amendment No. 69A are Amendments Nos. 70 and 87. It is probably helpful if we deal with them all at this stage, because I think that there will be nothing between us. The noble Lords, Lord Rix, Lord Swinfen and Lord Dholakia, wish in Clause 16 on page 12, line 35, to leave out "suffers from" and insert "has". This is not hair splitting; I believe that my amendment is better because it leaves out "suffers from" and inserts "has a". We have produced exactly the same result but I think that the Government have trumped the noble Lord, Lord Rix, and improved on his amendment by introducing the single word "a". That is another step forward. I think my best amendment in the past was to insert "but"; I have got it down from three letters to one.

The approach we adopt with regard to Clause 29 is rather different. The measures in Clause 29 will be available to the group of witnesses who are eligible under Clause 16(2)(a)(ii). They will be available to those who need help because of a disability or disorder under subsection (2)(b) or (2)(a)(i). In those parts of Clause 16 the phrase "suffers from" is to be retained. I understand the reasons why noble Lords have not tabled an amendment to those parts of the clause.

For some witnesses who are eligible under Clause 16, we think that "suffers from" may well be an appropriate description--for example, for those who suffer from degenerative or progressive disease, or who are undergoing courses of treatment for their condition, or who are suffering "from" a mental disorder.

We have approached this as carefully and thoughtfully as we can. We ought to be comprehensive and consistent in the Bill. I hope that your Lordships will not persist but will withdraw the amendment at Clause 29 and accept the government amendment to Clause 16. I beg to move.

5.30 p.m.

The Deputy Chairman of Committees (Baroness Lockwood): I must point out that if this amendment is agreed to I cannot call Amendment No. 70 under the pre-emption rule.

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