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Lord Cope of Berkeley: I apologise at once for intruding in such an erudite debate. As a layman in these matters, what concerns me is whether it would be

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possible for the Minister to put on one sheet of paper the considerations which the judge will have to take into account in deciding whether to admit video recorded evidence in chief in a case such as this. If that is difficult to do--judging by the discussion we have just had it is quite difficult--it seems to me that it would be very difficult for police officers and other people involved in interviewing child witnesses and others in the course of an investigation to get it right in a manner which will stand up in court. It is not only learned judges and counsel who will have to be able to follow the rules, whatever they are in the end, but other people with much less expertise, who will need to be able to follow and obey the rules in order to be successful in producing evidence in chief which can be used and lead to the correct decision in the court.

Lord Williams of Mostyn: Perhaps I may respond quite briefly to the noble Lord, Lord Cope. As the noble Viscount pointed out, we have had the video recording of interviews with children for almost 10 years. As he rightly pointed out, there is a memorandum of good practice and the training of police officers in the taking of statements. I understand that the noble Viscount's question is not really directed at the obtaining of material but dealing with it in its judicial context either in the magistrates' court, or as he rightly said, more likely in the Crown Court.

That is the question to which his observations and interventions have been addressed and on which I have focused my mind. It may be that at the end of the day I shall simply come back and say that I believe Clause 26(3) and the present Clause 27 are sufficient. But I believe that he has raised perfectly legitimate queries about the inter-relationship between at least four clauses. I undertake to think more carefully about it, even if I come to the same conclusion, and to write appropriately as I promised.

Lord Rix: Before the noble Lord sits down, perhaps I may ask two questions. In the giving of evidence children are mentioned all the time. I presume that the safeguards in taking evidence apply equally as much to people with a learning disability. The second question may be rather naive. If the editing of evidence is allowed, who is going to be present from the court to ensure that it is conducted in a true and proper manner?

Lord Williams of Mostyn: Again, I want to be as helpful as I can. The reason I mentioned training over the past 10 years and the memorandum of good practice, is that it has been in the context of children's evidence. But the lessons we have learnt from that good practice will be applied to those who have a disability. As regards editing, that takes place in a court context because the judge makes a ruling that certain questions and answers should not be allowed. That is one stage. The taking of cross-examination is subject to judicial control as well. So if one means editing physically, that can be done by a direction from the judge in the Crown Court context, but if one means editing in the form of,

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"You must not answer that question", which is a slightly broader use of editing, that is judicial control of the cross-examination itself.

Viscount Colville of Culross: I am grateful to those who have taken part in this debate, particularly if they understood what I was trying to say because it is not very easy. I thank the noble Lord, Lord Williams, very much for his offer to look at this matter again.

I wish to make three brief points. If he is right that Clause 26 is to be governed overall by the tests and principles in Sections 78 and 82(3) of the Police and Criminal Evidence Act, why does not the clause contain the same saving that is in the section which includes the proviso of being subject to the exercise of any power of the court to exclude evidence which is otherwise admissible? That is the cross-reference in that provision to the Police and Criminal Evidence Act. If the Minister is right in that those provisions override, why is it not in the Bill?

The noble Lord, Lord Rix, was quite right in saying that the video-recording of cross-examination and re-examination of any witness will be of a wider range than just children. There is no real safeguard in Clause 27(4) because the rules of court for these purposes, if they are like the rules that we have had before, simply deal with the number of days to transpire before the second stage is taken. The directions will have been given before the event and are unlikely to be the cause of the trouble. I believe the noble Lord will understand that the whole process involved in Clause 27 is organic, it is something added to the law and system that we have now. There is the ability to re-open the cross-examination, as I have mentioned previously.

None of this is foreseeable. The way in which challenges as to admissibility are going to occur is unknown at the moment. Without any clear guidelines in the Bill itself, I doubt whether it will be easy for judges to get it right. Therefore, I very much welcome the fact that the noble Lord will look at this again. I am sure that he will not come to it with any preconceptions that the Bill must be right. I am asking for absolute clarity so that in dealing with these matters the judiciary does not make a mistake on its part. Whatever else may go wrong with the trial, at least the judiciary will have clear guidance about what it is to do and the principles it has to apply. I welcome what the Minister has said. I look forward to his letter and a further discussion with him when I have received it. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 26 agreed to.

Clause 27 [Video recorded cross-examination or re-examination]:

Viscount Colville of Culross moved Amendment No. 83:


Page 20, line 40, after ("both)") insert ("who is (or are) to have conduct of the trial or appeal").

The noble Viscount said: In the light of what the noble Lord, Lord Williams, said a few moments ago, I suspect that this amendment is not strictly necessary. In

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either the Explanatory Notes or Speaking Up For Justice there is a suggestion that cross-examination and re-examination on video of witnesses who are to be given the protection of special measures should not necessarily be controlled by the magistrate or the judge. That is a disastrous suggestion to make. If there is one thing that has been learnt from the experience of video recorded evidence in chief and the cross-examination of a child witness--which is all that we have had so far--on the live link, it is that there has to be very close control indeed.

There is the inevitable tendency for cross-examining counsel to cover a point for longer than is necessary. He may not remember that a child's attention span is not very long. He may not allow time for a pause, certainly not for coaching but so that the child may have a short break in the proceedings for reflection. There are many reasons why it is necessary to have judicial control over the cross-examination and re-examination. Those who have taken part in trials will know that that is right and if properly exercised, it enhances the quality of evidence which witnesses give.

Therefore, I thought it worthwhile to make sure that the policy indicated in whichever of those documents it was, is not to be put into practice when the Bill comes into force. I seek an assurance from the noble Lord that that will not be the case.

That will be particularly important if there is a risk that cross-examination may continue by way of a recall under Clause 27. It must be right the first time because the defence will not have another opportunity unless it has new material of which it could not reasonably have had knowledge at the time. Therefore, close judicial control over those proceedings is necessary. I look forward to an assurance from the noble Lord that that is exactly what is intended. I beg to move.

9 p.m.

Lord Cope of Berkeley: I noticed an interesting difference between this provision--particularly if it were to be amended in the way suggested by the noble Viscount--and the position in Scotland. In Scotland, as I read it, if there is to be separate giving of evidence by vulnerable witnesses, including children, the evidence is taken by a legally qualified commissioner appointed by the court and acting for the court. I wonder whether the Home Office has considered that possibility for England and Wales or whether it did not regard it as working very satisfactorily in Scotland. However, I have no real evidence to suggest that it is anything other than satisfactory in its operation North of the Border.

Lord Williams of Mostyn: I am grateful to the noble Viscount for raising this issue. I assure him that we should absolutely prefer the same judge or justices who has or have heard an application for special measures as part of a pre-trial hearing to control interim proceedings such as the video-recorded cross-examination; and who would then take the case at trial. I am quite certain that the Court Service, the judiciary and the magistracy will make every effort to ensure that that is so.

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As the noble Viscount pointed out, that provides consistency for parties and the witness. Explanations to the jury in due course about the video-recorded evidence may well be fuller, more explanatory and, perhaps, better informed if the same person or persons control proceedings throughout. For a vulnerable witness, a familiar face is important.

But we must recognise that it will not always be practicable if we are to avoid unnecessary delay. Unnecessary delay is a significant feature of the damage that is done to children or other vulnerable witnesses. Therefore, I am happy to give that indication as firmly as I may to the noble Viscount.

I do not believe that such an absolute rule as he proposes is necessarily in the interests of justice for the defendant. Delay is often a blemish from the defendant's point of view too. The identity of the judge or justices who control the trial ultimately is perhaps not as important, but we wish to have continuity as far as we can possibly attain it.

The noble Lord, Lord Cope of Berkeley, asked me about taking evidence on commission. I had jotted down something about that earlier. There are sometimes difficulties about taking evidence on commission. Sometimes, the commissioner has not the authority to rule out inadmissible material. In the circumstances of our new experience, it is probably better to have the evidence controlled judicially for all the reasons which the noble Viscount gave. I am happy to give that clear indication--I do not believe I could have made it plainer--in response to the noble Viscount's question.


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