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Lord Thomas of Gresford: It is impossible for cross-examination to follow immediately after the interview under Section 26. It should be borne in mind that Section 26 deals with the provision,


It would be impossible to cross-examine any such witness without taking instructions. That requires that the video recording be made available to the defence and that time be provided for a proper conference or consultation to take place before the arrangements can be made for the cross-examination and re-examination of the witness to happen.

The Committee should not be left with the impression that it is possible to have a witness interviewed and on the same day for that witness to be cross-examined by counsel in full possession of his instructions. If that were to happen, if that is the intention of these provisions, it is almost inevitable that at a later stage the witness would be recalled to give evidence and subject himself or herself to further cross-examination.

A further point that has to be made is this: the Committee has addressed these provisions almost as though they were concerned solely with the sexual abuse of children. That is not the case. These are broad and wide provisions. I have not pressed my amendment to Clause 26(1) to confine "the witness" to a witness as described in Section 16(1); namely, a witness under the age of 17 or subject to some disability. Therefore these provisions apply to any witness where the court is satisfied that the quality of that witness's evidence is likely to be diminished by the reason of fear or distress. That can be any adult witness and is not confined to sexual abuse; it can extend to any criminal proceedings.

For example, I had the experience of dealing with a murder case in which the deceased was subject to a severe disability, as was the defendant and around half a dozen of the witnesses; they were all subject to disability. These provisions, therefore, could apply in a murder case. And one can easily imagine a fraud case where the critical and crucial witness was in such fear and distress of what might happen to him or her when the matter comes to the attention of those further up the chain of criminality that he or she might come within these provisions. The provisions could therefore apply to a fraud case.

It is virtually impossible to cross-examine a critical witness in a fraud case without primary and secondary disclosure taking place. So let us not confine ourselves to the sexual abuse of children in considering how broad these provisions are. I have attempted to confine them to children and those who are disabled but that has not so far been successful. Therefore one has to look at the implications on a much wider basis.

Lord Swinfen: I am not experienced in these matters but I wonder whether the Minister can instruct me. Am

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I right in thinking that much of the evidence that will be given by a child--and perhaps others--will be taken by the police during their investigations, even before a defendant has been found, and that those interviews will be used in court as evidence? In those circumstances, there will have been no chance for the defendant's counsel even to have been appointed, so that evidence could not be questioned in the very early stages. It could be months before a defending counsel is appointed. As the evidence has to be fresh in a child's mind to ensure that it is correct, it is taken in the course of police inquiries before a court case is even contemplated.

Lord Williams of Mostyn: The noble Lord is quite right: as the noble Lord, Lord Thomas of Gresford, rightly reminded us, Clause 27 refers to video-recordings of interviews of witnesses. If the accused is not apprehended for some time, in the nature of things, there cannot be a virtually contemporaneous cross-examination. As the noble Lord, Lord Thomas of Gresford, again rightly pointed out, you cannot cross-examine properly and professionally until you have instructions and, as the noble Viscount again rightly pointed out, you cannot cross-examine efficiently and professionally until you have had disclosure in some cases.

I see the noble Lord, Lord Lester of Herne Hill, in his place. When I say, "What about this, that or the other?", he frequently chides me with the doctrine of unripe time. I have always been amused by that. Your Lordships are now saying, "In some cases it may be difficult, so let us, therefore, do nothing in any circumstance where it might be of assistance to a child or a witness under disability".

Unless we start, we shall get nowhere. Of course, there will be some difficulties. Of course, the inertia of the judicial machine will continue. Apparently, to the outside observer, it regards itself as more important than those fundamentally concerned with it; namely, the complainants, the public and the defendants. I am not pretending--I never have--that this Bill provides a perfect remedy in every circumstance, but there are many cases where endless disclosure, primary and secondary, is not required. There are many cases in which disclosure is not fundamentally important. In those cases, which may be a minority--nevertheless, an important minority--after all this time we ought to begin to get on with the protection of victims in our system, whether they are complainant witnesses, child witnesses, witnesses under disability or simply the terrorised witnesses. I remind your Lordships yet again that there is already a provision for the admissibility in evidence, without cross-examination in some circumstances, of statements made by those who are too terrorised or too afraid to come to court.

The noble Viscount is quite right in his historical reminder. The measures are based on a recommendation made by the late Judge Pigot in his advisory group on video evidence, which was published a long time ago--in 1989. He made the general suggestions which formed the basis of our approach. As the noble Viscount said, with his enormous experience of the court system, it is perfectly true that the Pigot recommendations

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significantly predated the disclosure provisions introduced in April 1997 by the Criminal Procedure and Investigations Act 1996.

In many cases--I have never pretended differently--the defence is unlikely to be ready or willing to cross-examine witnesses until shortly before a trial begins. It would be wrong for any procedure or any judge to attempt, coercively, to interfere. I stress the words, "until shortly before a trial begins". If the average is 10 months--that means that some cases take longer than 10 months--that is a standing, continuing reproach to our judicial system. There is no reason why the judicial system should not be taken firmly by the neck and shaken. I do not mean the judges; I mean the whole system which, for far too long, has been polluted by interference on a delaying basis by those who are well versed in it. I speak as a game-keeper who was formerly a poacher, but now retired.

If we try, we can make improvements. They will not be 100 per cent. appropriate for every child complainant, every child witness or every adult who may be under a disability. There are two alternatives: either we begin with this enormous effort of will and determination or we do nothing. I am too young to want to do nothing.

As the noble Viscount said, it is perfectly true that this will be an inappropriate help in many cases, but it will be better than what we offer at present. It will be a start to doing away with uncertainty. The noble Lord, Lord Cope, was quite right; indeed, it entirely coincides with my experience. Nine months or 10 months is a lifetime to a child. What is even worse is the constant nagging, on going to bed every night, of not knowing whether or not they will have to give evidence and when the court date will be. At least certainty is better than that; we owe it to people. The noble Lord, Lord Thomas, is quite right to say that we must not confine ourselves to children because many other people have the oppressive fears that we have colluded in for far too long.

There are some cases where we could get the video recording of evidence in chief fairly closely followed by cross-examination. However, as the noble Lord, Lord Thomas, said, that would be very difficult in fraud cases; indeed, it could also be difficult in some murder cases. But in quite a number of other cases it would be perfectly straightforward.

Given the will and determination that noble Lords have shown they abundantly share in the context of the Crime and Disorder Bill, we must bend our minds and wills to the training of those who participate in the system. It can be made to work. After all, the listing system is quasi-judicial, but it is not beyond our wit, intelligence and, perhaps more importantly, imagination to list cases in an appropriate way to ensure, as criminal justice is now beginning to do, that priority cases get true priority. There is no difficulty in that respect, except the lack of will and determination.

Therefore, we should start to manage cases better. After all, I am addressing the Committee in the context of the Woolf reforms, where the noble and learned Lord's theory and philosophic approach is that judges

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should manage cases--what an extraordinary proposition! The public interest in the speedy adjudication and determination of all disputes, whether criminal or civil, is properly regarded as part of the public's interest. They are not private proceedings between the prosecution and the defence; they are wholly involved morally, politically and socially with the public interest.

I recognise that this is not a perfect solution, because there will be none. However, it is an improved solution. I am saying that we must make a start. We must train practitioners and make them see that it is a professional obligation. We must encourage the judicial system about listing and we must also encourage judges consistently to manage the criminal cases that are in their court centres. There is no one--be it the Lord Chief Justice, the Master of the Rolls in a civil context, the Lord Chancellor, the Director of Public Prosecutions or the Attorney-General--who does not believe that these are coincident interests to which we can work towards.

I am not going to promise that the world, presently flat, will become round as soon as the Bill receives Royal Assent. I know that not to be true. However, we can and must make a start. If we can give certainty to those witnesses who are vulnerable--a decent regard for their vulnerability is all that we are pressing for--we can make a start. There will be difficulties. There will be those who will not see that any reform can conceivably be of any advantage. There will also be those who will say that when they started at the Bar, when they first became solicitors or when they first learned to read and write, things were different. Of course things were different then; but, fortunately, they will not remain the same.

As I said, there will be difficulties. However, I believe we can manage them in the way that we are managing the Narey experiments. We can have designated judges, as, indeed, we have designated judges to try rape cases. I see that the noble and learned Lord, Lord Mackay of Clashfern, is present this evening. If I may say so without presumption, one of the great ornaments of his tenancy of the Woolsack was that the Children Act was brought into play. For virtually the first time it was a necessary requirement--which he insisted upon--that judges who tried these extremely difficult cases should not be allowed to try them without being designated, and they could not be designated without being trained. We do not necessarily need statute for these things. What we need is the efficient management of a system which creaks.


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