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Lord Rix: I am sure noble Lords will note that the amendments I moved today, mainly unsuccessfully, have been concerned with people with learning disabilities. I trust and believe that the Minister is aware that people with learning disabilities present a special case as regards court proceedings. It is easy for juries,

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and indeed defence and prosecuting counsel, to object to the evidence given by a person with learning disability because it may be given in a way which is perhaps not acceptable to the normal processes in court.

Having said that, I recognise the good will of the Government and the Minister underlying the Bill and to the amendment I moved. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 31 agreed to.

Clause 32 agreed to.

Clause 33 [Complainants in proceedings for sexual offences]:

[Amendment No. 89 not moved.]

Lord Wigoder: Before we continue further with Clause 33--I am not sure what is meant by the doctrine of unripe time, but this may be an appropriate observation--perhaps I may indicate to the Minister, as I am sure he is aware, that we are now embarking on a major and extremely controversial clause on which there is bound to be substantial discussion in the Chamber. I ask him whether he considers it entirely appropriate to proceed on that discussion bearing in mind the time and the fact that inevitably the attendance is perhaps not as representative as it might be on another occasion.

Lord Williams of Mostyn: I understand what the noble Lord says. I know that he does not say it for any trivial purpose. I understand--this really is unripe time or its close association--that the usual channels had agreed that we should conclude grouping 37. I am in the Committee's hands as always. My Chief Whip is not present. I do not know what the Committee wishes. I am entirely in noble Lords' hands because I genuinely wish to achieve the best outcome and the best product (I am sorry to use the jargon) for the Bill. I know that a number of noble Lords are present on the basis that we were to continue and break after grouping 37.

Lord Lester of Herne Hill: Since a number of noble Lords, including the Lord Chief Justice who is in his place, have attended especially for this debate, it seems undesirable that it should be postponed. We are all young in spirit as well as trying to emulate the energy of the Minister. I should have thought that the time is now ripe for the debate, if I may respectfully say so.

Lord Cope of Berkeley: I am inclined to agree with the view expressed by the noble Lord, Lord Lester of Herne Hill. It is true that in discussion on today's debates before proceedings began, I believe that we anticipated we might reach this point somewhat earlier in the evening. Nevertheless, as we have now reached it, and since a number of noble Lords have attended for

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the purpose of discussing the amendment, unless there is a strong wish to draw stumps and debate it on another occasion, I suggest that we should proceed.

Lord Williams of Mostyn: I gather the general feeling to be contrary to the view expressed by the noble Lord, Lord Wigoder. Therefore, I respectfully suggest that we continue.

Lord Thomas of Gresford moved Amendment No. 90:

Page 24, line 5, at beginning insert ("Without the leave of the court,").

The noble Lord said: The purpose of the amendment is so to amend Clause 33 that the court has a discretion to grant leave to cross-examine in person a witness who is the complainant. It is the removal of the prohibition that is starkly stated in Clause 33 and its replacement by a discretion to be exercised by the judge.

The consequences of a conviction for rape or a serious sexual offence are a long term of imprisonment, intolerable persecution from other prisoners within the prison, registration as a sex offender, restrictions after completion of sentence and serious public opprobrium that may last for the rest of that person's life. It might be thought that miscarriages of justice should be avoided because of the consequences for a person convicted of a sexual offence. In principle, there should be no less a burden on the prosecution to prove guilt than in any other category of case.

The trial cannot be conducted on the basis that the defendant is a rapist and that the complainant is a victim since the whole purpose of the trial is to determine whether that be the case. The defendant has a basic right to defend himself and to present his own case in the way he considers best. He may have reasons to distrust lawyers and, in certain situations, he may be in the best position to conduct cross-examination.

On Second Reading, I mentioned the possibility that a husband or partner may wish to put questions directly to his wife or partner who may be complaining of marital rape and seek to persuade her, through cross-examination, that her complaint is not a true complaint.

Unless the defendant's case is put to the complainant, the jury has no means of evaluating the evidence which has been brought forward. The suggestion of these provisions is that the court should appoint a barrister, but a court-appointed barrister will, in practice, be in a virtually impossible situation. He will not be acting for the defendant, who may refuse, in the circumstances, to speak to him at all. He will not be entitled to see the defendant's proof, if there is one. The defendant's case may be entirely different from that which appears in his original interview as part of the prosecution case. Should he give evidence and should his case, in giving evidence, be quite different from the interview--the information which the court-appointed barrister has--there will obviously be a necessity for the complainant to be recalled to be cross-examined again.

But there is no way in which the trial judge could prevent a defendant who wished to represent himself, and who had had a court-appointed lawyer thrust upon

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him, from addressing the jury on the basis that he had not had a fair trial. He would be perfectly entitled to say to the jury, "I did not want that man. He has not asked the questions that I wanted to be asked. He has no instructions from me and my trial is therefore unfair". Should the jury agree with that as a proposition--and a jury might well do so--then the defendant might be acquitted in a case where he should not be acquitted.

There have been two highly-publicised cases in which defendants abused their rights to act in person in order to torment the complainant. The noble and learned Lord, Lord Bingham, the Lord Chief Justice, in the case of Brown, pointed out that the trial judge has power to protect witnesses and to control questioning. He said,

    "The judge may, if necessary, to save the complainant from avoidable distress, stop further questioning by the defendant and take over the questioning himself. Further, if the defendant seeks by his dress or bearing, manner or questions, to dominate, intimidate or humiliate the complainant the judge should order the erection of a screen to protect the witness",
and, in the circumstances that we have been discussing earlier in Committee, the judge would be entitled to order the further giving of evidence by way of a video link or by one of the other measures contained in this Bill.

It is for the Minister to explain whether he believes that these measures which the Lord Chief Justice set out in that judgment are inadequate. In my judgement, it would not be satisfactory, if the purpose of this provision is to do something rather than nothing, to use the phrase of the noble Lord, Lord Williams of Mostyn, earlier this evening. It is not enough that this provision should go in as window dressing if there is already adequate provision in the judgment in the Brown case to cover the position of a complainant.

The position taken by myself, although not for the moment by my party, in Amendment No. 90 is to leave the control of the proceeding in the hands of the trial judge, who can evaluate the particular situation in the case. Perhaps I may make a general point. It seems to me that, over the past few years, Parliament has interfered with the discretion of judges not simply in matters of sentencing--and this is an obvious example--but in the exercise of their general discretion to control and run their courts. I believe that the provisions in Clause 33 are unnecessary. I beg to move.

Lord Carter: Before we continue the debate, perhaps I may say that I missed the earlier remarks of the noble Lord, Lord Wigoder. I believe it has been agreed that this group should be split at Amendment No. 95 and that we should discuss the group of Amendments Nos. 90 to 94. Then we should go to the group containing Amendment Nos. 95 to 134 and finish there. We should then continue with Clause 35 on Monday, if that is agreeable.

Lord Wigoder: I hope that the Government Chief Whip will allow me to state that had I observed that the noble and learned Lord the Lord Chief Justice had

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arrived specifically in order to contribute to this debate, I would never had been so presumptuous as to make the suggestion that I did.

Baroness Mallalieu: Amendment No. 92 stands in the name of the noble and learned Lord the Lord Chief Justice, the noble Lord, Lord Wigoder, and myself. It is grouped with this amendment. Therefore, in speaking to that amendment, perhaps I may say something in relation to the amendment which the noble Lord has just moved.

At Second Reading on 15 December, the noble Lord, Lord Williams of Mostyn, said in relation to this Bill,

    "We are approaching this with a genuinely open mind. If your Lordships table amendments that are consistent with the theme and philosophy of the Bill I undertake to give each one [decent] consideration".--[Official Report, 15/12/98; col. 1239.]
In outlining the philosophy behind Clause 33, the noble Lord started from the position which I would ask him at the outset to reconsider. In relation to complaints of rape and certain other sexual offences, he said,

    "We owe a duty to the victims of those distressing crimes to ensure that they are not victimised afresh when they come to court. Clause 33 and 34 are designed to fulfil our duty which, in the past, has not been fulfilled".--[col. 1238.]
I begin by saying that what I go on to say is in no way to disagree with the noble Lord that no witness, whether truthful or otherwise who comes before the court, should be bullied, intimidated or threatened. Indeed, when a witness is lying, in my experience that fact is more likely to become clear to those in court if he is relaxed and as at ease as possible in the course of giving evidence.

However, when the Minister used those remarks in outlining this part of the Bill on Second Reading, he appeared to be basing his approach on a presumption that the witness is a victim. The purpose of a contested trial is to determine whether or not that is so. The accused may instead be the victim of a false allegation. We must indeed find ways, as this Bill does, in which we can enable a witness to give evidence more easily so that the court can better determine where the truth lies. But in framing changes in criminal legislation it is easy to fall into the trap of assuming guilt on the part of the accused. Some witnesses may need more help. We are all agreed about that and other parts of the Bill provide for it. However, that does not mean that those who are or may be falsely accused need fewer safeguards or to have their rights eroded. And we must be vigilant to see that that does not happen, despite our best intentions, in these provisions.

Secondly, the noble Lord, Lord Williams, bracketed child witnesses, to which Clause 34 applies, together with adult witnesses in sexual cases. I am sure that he did not intend to be either patronising or insulting because we in this House know him well and we know that that is not his way. Children need special protection in our courts. They are without exception under a disability by reason of age. I have no objection to the extension of that protection; indeed, I welcome it. They are less well able to give evidence; they may require specialist cross-examination to elicit the truth; and the

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courts rightly take special powers to ensure that justice is done. However, adult victims of sexual offences do not form a category of people giving evidence under a disability. They come from every background and every level of education. Most, but not all, are women. Some are robust, others are not. They are not under a disability as of class and it is patronising to treat them as though they are.

Of course, very few people relish the idea of giving evidence in any case, particularly in a sexual case which may be acutely embarrassing. But some witnesses are not deterred, and indeed are anxious, to confront their attackers face to face and play their part in seeing that justice is done. When offered the opportunity to have her statement read rather than come to court and give evidence live, I have known a witness in a serious sexual case insist that she wished to give evidence in person in court in the face of her attacker. And she was indeed a devastating witness.

When an adult witness is vulnerable and likely to be prevented from giving evidence satisfactorily if cross-examined by the accused in person, Section 35 gives the court powers to restrict the defendant's right to ask the questions. But that is a different matter and it may well be appropriate in some cases. However, Clause 33 does something which is quite different. It imposes an absolute prohibition with no discretion. It allows for no consideration of the wishes or needs of a witness or of the interests of justice.

The objections to an absolute prohibition, a mandatory ban, are, frankly, these. First, it is a drastic step to deprive an accused person of the right to conduct his own defence. He may dislike or distrust lawyers, as the noble Lord, Lord Thomas, said. He may feel that he can do a better job himself and he may be right about that. He may feel that if he can put his questions directly himself he may elicit the truth where others may fail. Again--forgive the anecdote--I recall a case where the defendant, accused of rape after an argument by someone with whom he had been living, insisted on questioning her himself. It took no more than very few questions, put gently and courteously, before she admitted that the allegation had been made in temper and out of spite, and was now regretted and withdrawn. She was not prepared to continue the lie to that man's face.

The reality of a refusal to allow an accused to cross-examine in person is that he may well afterwards, if he is told that he must have a counsel to represent him, as the noble Lord, Lord Thomas, has already said, quite frankly refuse to co-operate with the lawyer assigned to him. We are of course talking here about a defendant who has already refused legal representation. He may fail to instruct his counsel adequately or at all, so that in effect his case goes by default. The jury will almost certainly be aware in his final speech that he has been prevented from conducting his own defence in cross-examination and may well regard that as unfair and treat his case with particular sympathy.

Is it, I ask, necessary to deprive all defendants of that right in every case of this type? I think not. Reference has already been made to the two cases--both of them

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bad cases, both of them attracting extensive publicity and both of them occurring two years plus ago. On 7th May last year the Court of Appeal gave clear guidance to judges faced with this situation, and gave them clear directions as to the steps which they could take, and indeed indicated quite clearly that the Court of Appeal would back judges who, in an appropriate case, stopped a defendant from asking direct questions and indeed stopped him in advance of asking questions, if they had good reason to think that his right to do so would be abused.

Since that date there has been no further problem. There were, in the words of the noble Lord, Lord Williams, failures in the past, but in May of last year the Court of Appeal put them right. It is very rare indeed for a defendant to seek to cross-examine himself. Most of them have the good sense to use a trained advocate and, apart from those two cases, I know of no instance where a defendant has intimidated witnesses in that way since. It may be said that public perception is that this happens frequently and so victims are discouraged from coming forward to give evidence. If that is the public perception it is a misconception, and legislation, particularly where it takes away a basic right from the defence, should not be based upon public misconception.

The remedy surely is to acquaint the public with the facts, which are two cases only and action by the Court of Appeal, since when no further problems have arisen. It may be said that victims need to be reassured that this cannot happen and that an attacker will not be permitted to cross-examine. I am sure that many more potential witnesses would be encouraged to come forward if they could be reassured that no one would cross-examine them or question their account at all. But cross-examination is, as we all recognise, a safeguard--indeed the main safeguard--for the wrongly accused against false conviction.

Amendment No. 92, in my name, does not go as far as others in this group. It merely asks that Clause 33 shall not come into force unless and until the Secretary of State, in the light of experience, certifies that it is necessary to protect witnesses. There is no evidence that that is the case today. If the position changes later he can say so, and have his way. It is a very modest amendment and I hope it is one which will find favour. As the noble and learned Lord the Lord Chief Justice said at Second Reading, it is surely wise to wait and see if a further remedy is needed before depriving judges of the discretion to control proceedings in their courts, fortified as they are now by the judgment of the Court of Appeal, in the way that they think best.

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