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Lord Williams of Mostyn: I entirely take the noble Viscount's point. However, one could imagine a racially motivated case where the only representatives of the press were perhaps people from the National Front. It would not be a case of them being employed by the mainstream press, but they may be present on behalf of

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one of their wretched, pathetic little magazines. One has to work these things through quite carefully, probably in conversations of the sort that I mentioned.

Viscount Astor: I take the Minister's point. That is an issue which I believe ought to be considered by the Government and discussed by the Minister when he meets representatives of the press. As I said, I am grateful for the Minister's response However, I am not sure that he has gone far enough at present to satisfy my concerns.

Amendment No. 80A would put the onus on the court. It says:

    "Representatives of the news media may not be excluded under subsection (1) unless the court specifically so decides".
That is an important onus and it is one to which we shall return. I hope that the Minister will consider that proposition. I believe that it is important for the courts to have to go through a process whereby they do decide such matters--and I am grateful to the noble Lord, Lord Thomas of Gresford, for his support in that respect--rather than it being an automatic process that the press are normally excluded. We want the onus on the courts to make that decision on an individual basis. There is a danger that a kind of precedent will be set whereby it is normal for the press to be excluded.

The Minister generously said that he would talk to representatives of the press. I shall study carefully what he said this evening, and I hope that he will study my rather long introduction to the amendments. In the light of the Minister's response, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 22 agreed to.

Clause 23 [Evidence by live link]:

Viscount Astor moved Amendment No. 79B:

Page 18, line 23, at end insert--
("( ) Where a direction provides for the witness to give evidence by means of a live link, the court may give permission for a support person, who is not a party to the case, to be present with the witness.").

The noble Viscount said: I can be as brief with regard to this amendment as I was verbose on the previous amendment. This is a simple amendment. It provides for someone to be present to support a witness when the latter is giving evidence by live link. There may be people who need such help, whether they are children or elderly people. It is not the easiest process to give evidence by means of a live link, as anyone who has used teleconferencing will be aware. When I was a member of the government, I found that process incredibly difficult. I am not sure that it made life easier. It is a difficult process for people who are not used to it. I hope that the Minister will consider this amendment or a similar measure to enable a witness to have a support person present to enable him or her to feel less intimidated by the whole process. I beg to move.

Lord Williams of Mostyn: Speaking Up For Justice recommended this measure. As the noble Viscount indicated, it is important that a supporter should be a

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neutral person capable of giving moral support to a witness but not interfering with the evidence. The amendment is not necessary as supporters are already allowed to accompany witnesses in court, and in many courts may accompany them in a live link room. However, that practice is not universal. The Interdepartmental Steering Group on Child Evidence is considering the practice to try to achieve greater consistency across the country. That work will obviously be a useful basis for arrangements for supporters for adult witnesses. I hope that on that basis the noble Viscount will withdraw his amendment.

Viscount Astor: I am grateful for the noble Lord's comments. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 79C not moved.]

Clause 23 agreed to.

Clause 24 [Evidence given in private]:

Lord Rix moved Amendment No. 80:

Page 19, line 4, at end insert ("under section 16(1) or (2) or 17").

The noble Lord said: In moving Amendment No. 80 I wish to acknowledge the invaluable support yet again of the noble Lords, Lord Swinfen and Lord Dholakia. I have been most grateful for that support throughout the afternoon. I seek to make it clear through this amendment that the Bill gives people the opportunity to give evidence in private and that this measure will be available to people with learning disabilities and mental health problems as well as to those who are eligible for special measures on the ground of the fear of intimidation.

For many people with learning disabilities living in the community even minor instances of intimidation may have a major impact. Minor intimidation may reinforce the perpetrators' impressions of their power and a victim's comparative weakness and may even lead to more serious offences. The court should therefore take seriously the cumulative effect of verbal abuse and intimidation against witnesses who are considered vulnerable as a result of their disability. I beg to move.

Lord Swinfen: I wish briefly to support the amendment purely on the grounds that a number of people with a learning disability, and indeed those who have a mental illness, can easily be frightened by circumstances that will not worry the ordinary able-bodied person in the least. I am sure that the Minister when responding will say that people with disabilities have exactly the same rights under the Bill as anyone else. However, I hope that the courts will take into consideration the fact that sometimes these people are much more vulnerable.

7.15 p.m.

Lord Williams of Mostyn: I accept entirely what the noble Lord, Lord Swinfen, has said. In the context of Clause 24 a witness may be eligible for special measures because he is young, or disabled, or is distressed or frightened about testifying. He may be eligible because he fits all three categories. He may need one measure for one purpose and a second for another.

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We would expect any application for special measures to specify in detail why a witness needs them and which special measures are needed. The court may accept the recommendations made. It may on the other hand wish to consider whether another measure, or combination of measures, may be more appropriate. It may indeed wish to offer a measure for which the applicant has not asked. We think it is important that an effort is made to provide no more and no less than the witness requires to give his best evidence.

Clause 24 provides for evidence to be given in private. It allows the court to ask anyone at the trial, apart from those such as the defendant who has to remain, to leave so that the witness can give best evidence in surroundings which are as quiet or as private or as considerate to the witness as possible. Some witnesses who are eligible for help under Clause 16 on the grounds of age, physical or mental impairment, or learning disability, may feel particularly inhibited by the difficulties of speaking in public. The noble Lord made that point. There is a range of measures available in the Bill to help them give best evidence.

The measures in Clause 24 will be open to such a witness or any witness who is eligible for special measures under Clause 17 if he is a witness in a sexual offence case or if the court thinks there are grounds for believing that someone other than the accused has intimidated, or is seeking to intimidate, the witness in relation to testifying. I refer to Clause 24(3) in this regard.

The provisions of Clause 18(1)(a) and (b) make it perfectly clear that the measures in Clause 24 are available to witnesses who are eligible for special measures under Clause 16 or Clause 17, or both. However, clearing a court should not be undertaken lightly. Wherever possible evidence should be given in public. The principle of open justice is an important one. Experience in overseas jurisdictions at this time is a useful reminder to us of that principle. We therefore believe that the measure should be used only in the limited, constrained circumstances set out in the Bill.

Lord Rix: My amendment was intended as a belt-and-braces measure to ensure that Clause 16 is, as it were, referred to from Clause 24. However, with the assurances of the Minister that Clause 16 is covered under Clause 24, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 80A not moved.]

Clause 24 agreed to.

Clause 25 agreed to.

Clause 26 [Video recorded evidence in chief]:

Lord Thomas of Gresford moved Amendment No. 81:

Page 19, line 8, leave out first ("the witness") and insert ("a witness who is eligible by virtue of section 16(1)").

The noble Lord said: The purpose of this amendment is to ensure that the video recording of an interview of a witness should be available only when the witness fulfils the requirements of Clause 16(1); namely, that he

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or she is under the age of 17 at the time of the hearing, or he or she is affected by mental disorder or significant impairment of intelligence and social functioning. As drafted, the provision in Clause 26 would permit that a video recording of an interview of any witness for whom special measures had been granted could be admitted as evidence in chief.

I agree with what was said by the noble Lord, Lord Williams of Mostyn, when replying to an earlier amendment; namely, that children have different needs and different capabilities. There is some sense in having their initial interview shortly after they have lodged a complaint recorded and presented in court as the evidence in chief. Their memory is fresh. It further has the benefit that, in giving their full account of what has occurred and before cross-examination, they can do so in the court proceedings without having to be examined in chief. Under the present provisions, children are subjected to cross-examination by means of a live video link. We shall discuss later whether it is advantageous and fair that they should be cross-examined at an earlier stage and that their cross-examination should be filmed.

The provisions in Clause 26(1) relating to all witnesses tip the balance too far against the defendant. It is just the same as the witness coming into court, being provided with a statement of complaint that he or she made at the time and simply reading it out. That is something that we have always prevented in our courts. A contemporaneous statement may be used to refresh the memory, but not as the evidence in chief. If one permits this provision into the proceedings, one is in effect permitting any witness, so long as he or she comes within the provisions of Clause 17, to have that benefit.

Subsection (5)(a) opens the position even further. Although the witness must be called by the party tendering the interview in evidence, the special measures direction may provide that the witness's evidence on cross-examination be given otherwise than by a testimony in court. Again, that is an unacceptable widening of the situation. In trying to preserve the balance between the complainant and the defendant and ensuring that the trial is fair, open and just, these provisions take the matter too far.

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