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Lord Wigoder: The Minister repeatedly referred to "the judge". Have I misread Clauses 35 to 37? Do they not apply equally to magistrates' courts proceedings? Is it not for the magistrate to follow through these complicated procedures to decide whether the questioning may be unfair, even in the most trivial of offences? In a large percentage of trivial offences the defendant represents himself in the magistrates' court. Has the magistrate then to go through all these procedures to decide whether the unrepresented defendant can have legal aid in order to ensure that justice is done?
Lord Williams of Mostyn: The magistrates sit judicially. That is why the word "court" is used in the subsection. But magistrates have to make rulings which are sometimes difficult. They have the advantage of legal advice from their clerk. There is nothing novel in this. I would expect there to be relatively few cases in the magistrates' court. The noble Lord is right. More than 95 per cent. of criminal cases are tried in the magistrates' courts. But magistrates have to come to these conclusions regularly as part of their judicial work with legal advice that they are given by their clerk which they apply to the facts of the case.
Viscount Brentford: I have friends who have suffered the problem of stalkers and I know how traumatic has been it was for those ladies. Therefore, I support the principle that the court should be able to bar a stalker, for instance, from cross-examining the victim in person. While stalking is not as serious a matter as rape, it is extremely traumatic for the ladies concerned and therefore I would welcome the proposed principle. It is right that in such instances the court should have a discretion to bar cross-examination by the accused.
Lord Thomas of Gresford: If the provisions were specifically directed towards stalking or harassment cases they would be less objectionable. However, the provisions apply across the whole of the criminal law.
Stress is endemic in the judicial process. Everyone in court is under some degree of stress, whether it be the advocates, the judge, the witnesses and, most certainly, the defendant. One cannot avoid stress in the courtroom. The problem with such provisions is that they "cotton wool" witnesses against the proper cross-examination which in our system usually results in the truth becoming known. That is a stressful situation in which truth becomes apparent. If a witness is forever insulated from cross-examination, whether it be from the accused or his representative--that is not suggested here--the truth will not come out. I have an objection to the whole cumbersome machinery of the clause.
Lord Cope of Berkeley: I am grateful to the Minister for setting out in a little more detail the kind of cases and instances in which the clauses might apply. He suggested that the measure related to vulnerable witnesses. Earlier in the Bill we considered the definition of "vulnerable" witnesses and what should be done to protect them by way of screens and so forth. Clauses 16 and 17 set out who are vulnerable witnesses. Will the Minister consider including these provisions in that part of the Bill which covers vulnerable witnesses and provides for other means of protecting them? That might make the clause a little more acceptable than it is in its present blanket form.
Baroness Ludford: I have not been concerned with the Bill, but I have considerable sympathy with the views expressed by my noble friend Lord Thomas of Gresford. The cause of vulnerable complainants and witnesses is obviously not served by miscarriages of justice on the other side. It is not a gain for one at the expense of the other. Will the Minister say a little more about the clause? He used stalking and harassment as illustrations. As stalking is now a statutory offence, can he be more specific about the offences which are covered? After all, there are strong civil liberty implications. The Government have properly tried to strike the best balance between the civil liberties and rights of the accused and the protection of vulnerable complainants and witnesses in order that they come forward and are prepared to go through the trauma of a trial.
I take the point made by my noble friend Lord Thomas of Gresford about the stress involved in appearing as a witness. There must be a distinction between being prepared to tolerate that stress in the interests of justice and being protected from the traumatic situation of reliving the offence. Can the Minister be more specific so that that balance is properly struck? I have sympathy with the concerns expressed about the clause going too far and potentially damaging the civil liberties and rights of the defendant.
It has been asked in various ways why we do not have a list of offences. The reason is that I sought to indicate the categories of offence and then I thought that I had explained that there were categories of witnesses. Perhaps I may take up the helpful observation of the noble Viscount, Lord Brentford, who spoke about particular incidents of harassment and the fact that the generally female victim of the alleged harassment might be unable to give her best evidence. That is right, yes, and it might well be the same for an elderly widow who has been burgled six times by a notorious local thug. The elderly widow living alone has civil rights and liberties, one of them being that the state ought to secure her safety in her home. If that fails, proper acquittals should be brought about, but also proper convictions should be brought about in whatever the court of trial--the magistrates' court or the Crown Court.
That is not a charter for everyone to say, as in the example of the noble Lord, Lord Thomas, "My boss is the defendant in this fraud case and I feel a little uneasy about my employment prospects". If that application were made by or on behalf of the witness in question, it would not be upheld. One is talking about cases which are severely circumscribed by the provisions in Clause 2. The court has to determine that the quality of evidence given by the witness is likely to be diminished if the cross-examination is conducted by the accused in person; and that it would be likely to be improved if a direction were given under the clause; and that it would not be contrary to the interests of justice to give such a direction.
In answer to the noble Baroness, Lady Ludford, I believe that one cannot have lists of cases. Obviously, one chooses the cases which are likely to give trouble, but one must look at the witnesses. Witnesses may well suffer the disabilities of being unable properly to give the best quality of evidence; in other words, that impediment to the functioning of a proper criminal justice system may be infinite. It is not the offence which matters, but the relationship between the defendant and the witness whom he wishes to cross-examine. We are saying that if these tests are established to the proper satisfaction of the magistrates, with the legal advice they receive, or the judge, having considered these matters and directed his mind, the court ought to have the reserve power to direct that an individual cannot cross-examine the witness.
I believe that that is a step towards better justice and not an infringement of the interests of the defendant or against his human rights. There is a prosecution and a defence in a case. Of course, the prosecution has an
Lord Williams of Mostyn: I am so sorry. I did not mean the noble Lord, Lord Cope, any discourtesy. As always, I shall give careful consideration to anything that is said in this Committee, as I shall to what has been said by the noble and learned Lord, Lord Ackner, and what he is about to say in summarising his position. I have always been open to further reflection. I always say "without guarantee". But I can say from my own knowledge that on such questions officials are extremely alert to the fact that we may not have got it right first time. I believe that we have. However, I am sorry that I did not respond more positively to the noble Lord, Lord Cope.
Lord Ackner: The only matter on which I should like the Minister to reflect is that there is no need to give this power by statute. It is already there. A judge, in the control of his court, may say to a defendant, "Your cross-examination is excessively hectoring", or, alternatively, "It is irrelevant. When the jury were out, before you began to cross-examine, I gave you certain advice. If you will not adhere to it then you will not be allowed to ask any further questions. I shall ask the questions on your behalf". All that seems to be overlooked and perhaps it could be the subject matter of some reflection between now and Report stage. However, at present, I do not press my objection.