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Lord Williams of Mostyn: I am extremely grateful for that. It would trouble me in particular, since I was a trustee of the society until the election intervened, if those were the consequences. I shall look at that with particular care with officials and I undertake to write to the noble Lord in the way that he has generously suggested.

I should say in response to the noble Lord, Lord Thomas of Gresford, that we expect that applications would be made inter partes. However, I do not wish to mislead the Committee. Clause 20(6)(d) enables rules of court to make provision for confidential, sensitive information to be used for such an application and that is allowed to be withheld from any party to the proceedings. It is possible, in rare cases, that such information may well be legitimately necessary for such applications. I must sound that cautionary note because the noble Lord and I will know of some cases which we can easily remember where that may be a proper safeguard. But I agree with the general proposition that those matters should be inter partes.

I take the point made by the noble Lord, Lord Cope. I believe that it is better dealt with by my Amendment No. 75A to Clause 20. It is important to have a statutory requirement for the court to take into account what measures a witness says he would find useful. The court must be required to consider whether a special measure will inhibit a party's ability effectively to test the witness's evidence. That normally means asking the parties for their views.

We do not need an additional requirement to consider the views of every part to the proceedings. In practice, it will usually have considered the views of the party calling the witness and making the application. In the course of considering whether the measures will make it difficult for any party to test the witness's evidence effectively, it will have to consider any other party's views if the witness is relevant to the case against that party. There is nothing to prevent the court seeking any party's views at any time, if it wishes to do so.

If a court decided to make a special measures direction of its own motion, I should certainly expect it to consult the party calling the witness as well as the witness and the other party. Therefore, the court will have considered the issues as to how effectively the witness's evidence can be tested and what measures the witness would wish to use when it makes the original direction.

The government amendment is intended to ensure that it is possible for both parties to make representations about those issues later on if circumstances change. The

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Bill at present only allows the party which applied for the direction to ask for it to be overturned or varied, unless the court decides to do so of its own volition.

Liberty and, separately, the Guild of Editors have suggested to me that either party should be allowed to apply for a special measures direction to be varied or discharged if the party is aware that there has been a material change of circumstance since the direction was made or was last made. Having thought about it, I believe they are right. There should be equality of arms, as it were, between the parties. My amendment will achieve that. I am grateful to those who have brought the matter to my attention. I ask the noble Lord to withdraw his amendment as not being necessary in the light of my explanation and I ask the Committee to accept my amendment because I believe that it does justice to both parties when there has been a supervening change of circumstance.

Baroness Carnegy of Lour: Before my noble friend decides what to do with his amendment, perhaps I may make a request of the Minister. When he replies about the NSPCC submission, will he send copies to other noble Lords? He did so previously and it was a great help. What the NSPCC says about Clause 19(2) and (3) is extremely disturbing. I wish to be certain that the noble Lord is right.

Lord Williams of Mostyn: The noble Baroness is right. I did not say so on this occasion, but my invariable practice is not only to write to the noble Lord who raises the issue but to all other Peers who have participated in the debate or similar debates. I always place a copy in the Library, too. I should have said that, but perhaps your Lordships would take it as read in connection with any undertaking about letter writing that I give.

Lord Cope of Berkeley: I support the improvement to Clause 20 as suggested by the Minister and the government amendment. I am not sure why my amendment to Clause 19 is not also necessary, but I can see that the court must consider all the circumstances of the case. I suppose that that covers the matter sufficiently. Having had the Minister's reassurance that my amendment is unnecessary, I beg leave to withdraw it.

Amendment, by leave, withdrawn.

Lord Rix moved Amendment No. 75:


Page 15, line 4, leave out ("might tend to") and insert ("will").

The noble Lord said: In moving Amendment No. 75, I am aware that in providing special measures for witnesses the court must primarily focus on the necessity for quality evidence and, as a corollary, on the circumstances and requirements of the individual witness. However, I have concerns that Clause 19(3)(b), which allows the judge to rule out the use of special measures on the grounds that they might tend to inhibit the quality of evidence, could be used inappropriately either on grounds of principled objection to the use of special measures or through misinformation about the likely impact of special measures. The language in the clause could be tightened up simply, but with important

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effect. The Minister has already corrected my English and I hope that he will allow me to correct the English in the Bill. My amendment suggests that rejecting special measures on the basis that they "might tend to" inhibit such evidence is not ground enough. Rather, special measures should be ruled out only if the measures "will", with a greater degree of certainty, inhibit the evidence. I beg to move.

Lord Swinfen: I support the amendment because I believe that it is more in keeping with the spirit of the legislation than the words in the Bill. Where an eligible witness is the main witness for the prosecution, and without whose evidence the prosecution will fail, I would not put it past a clever lawyer to argue that the words "might tend to" are appropriate in his case and rule him out so that he could not give evidence with the necessary support. It would be much more difficult for a lawyer to do so if the word "will" were inserted. It would strengthen the case and strengthen the court's hands.

Lord Williams of Mostyn: We return to the balance drawn to our attention by the noble Lord, Lord Thomas of Gresford. We must not go too far in attending to the needs of a particular class of witnesses but not constantly bearing in mind the needs of the defendant and his witnesses in a criminal case. I understand the spirit behind the amendment, although I have to dissent, but if it were accepted the court would have to be sure that giving any special measure to a witness would inhibit the ability of the other party in the proceedings to test that witness's evidence before it could refuse the measure.

Clause 19(3)(b) allows the court the discretion not to award a measure or measures if it considers that there is a marked possibility that it would inhibit the witness's evidence from being properly tested; in other words, "might tend to inhibit". That is a fair balancing act, bearing in mind that not all defendants are guilty simply because they are accused. The purpose of an adversarial trial in public is to protect the defendant's rights as well as to be tender about the rights of the complainant and the witnesses.

We believe that this balancing act needs to be sustained. The adoption of a further inhibition in the terms put forward by the noble Lord goes too far the other way. If the court has any doubts about whether it is possible adequately to test a witness's evidence, if evidence is to be given with the assistance of a special measure, it should not award the measure.

I believe that such conflicts of interest would be rare. The measures are designed to include the quality of a witness's evidence, but they are not designed to prevent the evidence he gives from being challenged. I do not believe that we should go as far as the noble Lord, Lord Rix, goes in the amendment.

Lord Rix: I have no wish to push the Minister off the tightrope in his balancing act at this stage. I should like to read his response in Hansard and consult with

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my colleagues before perhaps returning to the matter at a later stage. In the meantime, I beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

Clause 19 agreed to.

Clause 20 [Further provisions about directions: general]:

Lord Williams of Mostyn moved Amendment No. 75A:


Page 15, line 29, leave out ("by the party at whose request the direction was given,") and insert ("made by a party to the proceedings,").

On Question, amendment agreed to.

Lord Rix moved Amendment No. 76:


Page 16, line 4, leave out ("the") and insert ("more than one").

The noble Lord said: Without wishing to make the application process for special measures unduly bureaucratic, it seems to me quite straightforward for the court to reconsider at least once any application for special measures which has been rejected. It is unlikely that potential witnesses will pluck their desire for special measures out of thin air. More often than not, the needs will have been identified earlier and support will have been provided during the police and CPS processes. If needs have been identified earlier, it makes sense to offer continuity of provision throughout the justice system. Therefore, if support were denied at this last hurdle it might be sensible for the court to reconsider. I beg to move.


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