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Lord Rix: I am grateful to the Minister for his new amendment. It supersedes Amendment No. 70, tabled by myself and other noble Lords, and Amendment No. 87 which is consequential. I accept the Minister's explanation and, at the same time, I agree that the English used in Amendment No. 69A is considerably

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better than I used in Amendment No. 70. I shall have the greatest possible pleasure in not moving Amendments Nos. 70 and 87.

On Question, amendment agreed to.

Lord Rix moved Amendment No. 71:


Page 12, line 43, at end insert (", the extent to which the witness requires support and the views of relatives, carers, advocates and other relevant parties").

The noble Lord said: In moving Amendment No. 71 I shall speak also to Amendments Nos. 72 and 77 which are grouped with it.

First, I will say a little about Amendment No. 71. I very much welcome that the Bill makes provision for what may seem to many to be obvious but is often overlooked; namely, that an individual's opinion counts for something. All too often, third parties of one stripe or another confidently claim to have a monopoly on the opinions and expectations of an individual. Within MENCAP there is currently a huge drive towards facilitating self-advocacy. We would like to encourage that in relation to witnesses. However, in many cases, self-advocates still require some support in order to express their views. Without such support they might neither perceive their potential vulnerability nor the possibility of intimidation.

Without support, many people with learning disabilities lack the communication skills to make their views known. Without support, they do not understand terms such as "intimidation" or "vulnerability". People with learning disabilities may have difficulty with taking in new information, handling complex material and communicating effectively. They may need support to help them to think of what they want to say, or they may need encouragement to answer a question. For this reason, I would like provision to be made for support at this early stage.

Without this provision, how can people who may need special assistance because of their difficulty in understanding the formal procedures adopted in court make a sensible judgment about whether or not they will need assistance to participate in these measures?

Turning to Amendment No. 72--and following on from the points that I have just made in connection with Amendment No. 71--I see no reason why people close to the witness cannot be consulted in order to determine whether or not the witness has a learning disability and the extent of that disability.

As to Amendment No. 77, Clause 20 allows for expert evidence to be marshalled in considering whether a special measures direction should be made available. I am not quite sure what definition of an "expert" the Government have in mind. Is an expert a psychiatrist unknown to the witness, who can be shipped in to make a broad medical assessment of a witness's intellectual impairment, or is he somebody who, in a professional capacity, counsels the individual in the circumstances of his every day life--for example, a social worker or a community health official?

Let us not forget that the eligibility criteria for special measures includes the individual's social functioning as well as his mental capacity. If assessment for special

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measures consists of nothing more than labelling somebody's mental age or other general formula, then his actual capacity in relation to the special tasks ahead as a witness is likely to be overlooked.

Sometimes it is worth looking a bit closer to home, which is why I propose a new subsection. Advocates, carers and relatives should be consulted where appropriate. These are the people who are often best placed to understand the more subtle patterns of behaviour and fluctuation in capacity, and to give support to a witness in stressful circumstances. These parties should, however, only be consulted where relevant. I very much appreciate the tensions which can exist in relationships between a person--disabled or otherwise--and those closest to them. But that should not debar the court from taking opportunities to enlist their help where that help is genuinely needed. I beg to move.

Lord Renton: I am in broad agreement with the purpose of Amendment No. 71, moved by the noble Lord, Lord Rix. However, I think it should be expressed rather differently. It should read,


    "the extent to which the witness requires support and any views expressed by relatives, carers, advocates and other relevant parties".
If we do not put it in the way I have suggested, the court will have the rather strange responsibility of gathering up the various people mentioned, which it may find very difficult to do. If, on the other hand,


    "relatives, carers, advocates and other relevant parties",
are in touch with the witness about the matter, then they can come to the court and express their views. Although the noble Lord's purpose is very commendable and necessary, it must be expressed differently. In his other two amendments, the purpose is expressed in a way that is acceptable. There it reads "the evidence of" in each case, and that makes it quite clear.

Lord Windlesham: Before the noble Lord replies, I wish to raise a small point following on from what the noble Lord, Lord Renton, has said. Perhaps the noble Lord will ask the draftsman to consider whether the word "views" has the precision of meaning which one hopes to find on the statute book. I do not have an alternative suggestion, but "views" is surely diffuse and imprecise.

Lord Cope of Berkeley: I rise briefly to support this group of amendments, with which I have great sympathy. Obviously I take into account what my noble friends have said about the detailed wording.

I wish to make an additional point. In these circumstances it seems that helping and supporting the witness in this way actually helps the court to arrive at the right conclusion in the case that it is considering. It is not just a question of being sympathetic to a witness who may have been a victim of crime, but of getting at the truth and getting the right decision in court.

Lord Swinfen: This Bill seeks to achieve justice. Young people with mental disability need the support of

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those whom they know and are confident with rather than strange experts, by which I mean those strange to them. It is important to bear in mind that a number of these young people may also have a speech impediment and only those who are close to them may understand them. I strongly support the amendment moved by the noble Lord, Lord Rix, even though it may require improvement in the way suggested by my noble friend Lord Renton.

Lord Williams of Mostyn: Not for the first time I am in absolute agreement with the observations of the noble Lord, Lord Cope of Berkeley. The object is to obtain the best possible evidence for the court and the provision is there in the pursuit of justice. We have come to this particular area of evidential law and practice very late in the day. I fully appreciate that these amendments are designed to ensure that the court takes account of the views held by a witness's relatives, supporters, carers, advocates and other relevant parties. I believe that I can live with "views". I am not sure of the extent to which that differs from "opinions", although opinions sometimes come in expert form and are expensive, whereas the views of relatives and parents are perhaps more persuasive and are free.

Therefore, the views and opinions are directed at the extent to which the nature of the disability or disorder as defined in subsection (2) is likely to diminish the quality of the individual's evidence. Where these are relevant to the court's decision it will take them into account. I do not however believe that it needs to be on the face of the Bill and perhaps I may spend a moment or two on the reasons why. In most cases the parties to any proceedings will have determined at a relatively early stage the witnesses they will or may want to call. If either party considers that one of its witnesses needs special measures under Clause 19 it must prepare and make an application to the court. One must carefully bear in mind that Clause 19(1)(b) gives the court power of its own motion to raise the issue as to whether such a direction should be given. The application must set out the reasons why the witness should be considered eligible for special measures and what measures would be likely to improve the witness's evidence. That can include a family member who deals with someone with a speech disability because the ordinary interpreter (as we should regard such a person) will do a good deal less satisfactory piece of work than someone who knows the individual in question, can calm him, reaffirm the trust between them and give much more effective, practical help to the court. I agree entirely with the noble Lord, Lord Cope of Berkeley.

In preparing the application there will have been discussions with the witness and, where appropriate, one or more of the witness's relatives, supporters, friends or any other relevant person who can advise on the help that the witness is likely to need. That may well be the help described by the noble Lord. One must bear in mind that the witness may well have his own views and may not want assistance from relatives. One must not fall into the trap of which the noble Lord, Lord Rix, has warned us in the past, rightly, and take away decision and individual judgment from someone simply because

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he has a disability. He may not want his relatives to assist him. Many witnesses with disabilities are perfectly able to speak for themselves and, much more importantly, may well want to do so. The court should take account of those views in its decision on eligibility and the measures to be provided under Clauses 16(4), 17(3) and 19(3)(a).

If one has a very young or deeply handicapped witness a relative, supporter or carer may be a better advocate for the witness's needs than the witness himself. There is nothing to prevent any of the parties suggesting to the court, or the court deciding on its own motion, that it should hear the views of a relative or carer. We must allow the court flexible discretion in a particular case. I am happy to underline to the Committee the existing common law powers that allow the court to hear evidence of such views whenever it sees fit. Therefore, the discretion is already there.

A second effect of Amendment No. 71 is to require the court to consider the extent to which a witness requires support when it determines whether or not he is eligible under Clause 16(1)(b). This is not necessary. The court is already required under that subsection to consider whether the quality of a witness's evidence is likely to be diminished by disability or disorder. Under Clause 19 it is required to consider whether any of the special measures would be likely to improve or maximise the quality of the witness's evidence. These provisions constitute a duty on the court to consider whether the witness requires support from a special measure in order to give his best evidence, as the noble Lord, Lord Cope of Berkeley, suggested.

The noble Lord, Lord Rix, helpfully drew attention to the question of different provisions for experts. That is not in any way intended to imply that an expert is better than a parent, carer, relative or friend. It simply falls in the context of the making of rules of court. The making of rules of court relates simply to the provision of expert evidence, in the way that there is now provision for expert evidence in many cases and no particular provision is made for an ordinary lay witness. An expert witness is anyone whose credentials satisfy the court whether because of academic qualification or expertise. As the noble Lord, Lord Rix, suggested, the expert may well be a psychiatrist who perhaps knows the consequences of the disability of the particular individual. Therefore, Clause 20(6) does not attempt to imply that an expert is better, but is simply a provision for making rules of court for the practical disposal of court business.

5.45 p.m.

Lord Mackay of Clashfern: Can the Minister tell the Committee whether there is any way in which the court by or on behalf of a witness may be alerted to special needs? The clause provides that the parties may do so or that the court may do so of its own motion. It occurs to me that, for example, Victim Support may know of circumstances that are not within the knowledge of the parties and wishes to bring that to the

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attention of the court. In a sense that is a matter for the court of its own motion, but it may be necessary--I do not know--to make clear that that possibility exists.


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