Previous Section Back to Table of Contents Lords Hansard Home Page

Lord Thomas of Gresford had given notice of his intention to move Amendment No. 108:

Page 26, line 33, leave out (", 34 or 35").

The noble Lord said: If Clauses 34 and 35 are to remain in the Bill, this amendment prevents altogether the appointment of a legal representative.

The purpose of the amendment is to ensure that what I regard as the unworkable machinery of the appointment of a legal representative to cross-examine a witness does not apply in these particular cases. However, I do not propose to say any more about it because it is on the next group of amendments that I wish to make my points. Therefore, I shall not move the amendment.

[Amendment No. 108 not moved.]

Lord Thomas of Gresford moved Amendment No. 109:

Page 26, line 34, leave out subsections (2) and (3).

8 Feb 1999 : Column 20

The noble Lord said: The purpose of Amendment No. 109, together with Amendment No. 111, is that if a representative is to be appointed then that representative should not simply be appointed to cross-examine a witness but should be appointed to put the defence case as a whole to all the witnesses who are before the court thereafter.

It seems to me to be suggested that the court may appoint a legal representative to come into a trial. It may then say to him, "All right, you now cross-examine witness X. For various reasons, I have decided that the defendant acting in person should not be allowed to cross-examine this particular witness. I now want you to carry on and cross-examine". That must lead immediately to an adjournment. The issue will then arise whether the representative so appointed should have a conference or consultation with his client in which he learns something about the case; in which he receives instructions as to what the defendant wants to put; and finds out whether the defendant will co-operate with him.

If a defendant co-operates with a court-appointed legal representative, then I suppose that the system can work. But almost by definition, a defendant who is representing himself has rejected the possibility of having a legal representative in the case generally in any event. Therefore, he is in a position in which he will not wish to co-operate. The legal representative appointed by the court will not know what sort of case he must put and which points must be made to a witness. Of course, at the end of the case, when addressing the jury or the magistrates, the defendant will be entitled to say, "I did not want that lawyer to represent me. He has not asked the questions I wanted him to ask. I have been the subject of injustice". In a jury trial in particular, that may well lead to the jury agreeing that it is unjust and acquitting when it should convict. That was a point made at some length in our earlier deliberations by my noble friend Lord Wigoder. The whole suggestion that an outside lawyer can be dragged in to cross-examine one witness is quite wrong.

The effect of the amendments which I propose is that if that machinery is employed, the lawyer will not simply pop in and pop out so that when that witness has been disposed of, he is bid goodbye and the defendant then carries on unrepresented. If the lawyer is called into the case, he should at least stay there and give some assistance throughout the rest of the case. I beg to move.

Lord Renton: I have always thought that freedom was the foundation of our democratic way of life and that our system of justice was intended to uphold that freedom. But Clause 37(3) runs right against that. It would mean that an accused person who did not want to have a legal representative would have one thrust upon him. That does not seem to me to be right.

Lord Cope of Berkeley: Amendments Nos. 109 and 111 seem to me solely to delete the provisions which provide for the accused, faced with the possibility of not being able to cross-examine, at least to consider whether he will willingly have, at that stage, a lawyer appointed

8 Feb 1999 : Column 21

by the court to do the job for him or for that matter appointed by himself to do the job for him in regard to cross-examination.

If that provision is to be put into the Bill, it seems to me that what is provided in subsections (2) and (3), which would be deleted by Amendments Nos. 109 and 111, are necessary or at least desirable to give the accused the opportunity to appoint his own lawyer at the last minute, just when he knows that he is about to have that sanction imposed upon him.

The noble Lord, Lord Thomas of Gresford, referred also to the point in Amendment No. 110--and it seems convenient to discuss that with this group--that when a lawyer is appointed by the court to act on behalf of the defendant who cannot cross-examine for himself, he should put the whole case for the defence. It seems to me that it would be extremely helpful if the lawyer concerned were involved in the whole of the case for the defence, not just in the small part of it which involved the cross-examination in the middle of the case of a single witness who happened to be a vulnerable witness, as we have discussed. It seems to me that that is to ask a very great deal of the lawyer, even if he has the co-operation of the accused.

If we put a lawyer in that circumstance, then the quality of the cross-examination is likely to be diminished--to borrow a phrase we were discussing earlier--and make it extremely difficult to conduct. But it will be even worse if the accused still does not wish to have a lawyer acting on his behalf. Given that the accused, by definition, is likely to be someone who is anti-lawyer and certainly does not want a lawyer acting for him, it is highly likely that in a number of cases he will not wish to co-operate with the court-appointed lawyer who is supposed to be acting for him.

In those circumstances, counsel will have even more difficulty in conducting a high quality cross- examination and the whole problem is compounded. That is why I tabled Amendment No. 109A, which it may be convenient to include in this group since we have already wandered from the narrow point of Amendments Nos. 109 and 111. Amendment No. 109A suggests that the court-appointed lawyer should only be appointed if the accused agrees to his appointment and therefore some reasonable element of co-operation can be expected between the two.

I realise that if the accused were still to refuse the appointment of a lawyer, then no cross-examination would take place because there would be no lawyer and the defendant would be unable to conduct it himself. That might raise once again the problem of human rights and the European Convention. After all, this whole clause exists to some degree in order to keep us on the right side of the Convention by providing for some way in which a defendant who is otherwise unrepresented, can be represented.

But it does not seem to be in line with natural justice that someone who has resisted a lawyer for the whole case and continues to resist even briefing one for the cross-examination, should nevertheless be forced at that point to have a lawyer to conduct that cross- examination. On the face of it, that cross-examination is

8 Feb 1999 : Column 22

not likely to be of high quality or contribute necessarily to the interests of the accused, which the court-appointed lawyer will have a great deal of difficulty in determining if he has not been properly briefed and included in the discussions as to how the defence might best be conducted in all the circumstances.

Lord Swinfen: Perhaps I can make one small point. If a new lawyer is to be brought into the case in the middle, unless that lawyer has been sitting in court throughout the case he will not know how it has gone and the correct questions to ask. Is it proposed therefore that where an accused decides to act for himself and is likely to be instructed to have a lawyer, there should be a third or additional lawyer sitting in court purely as an observer until such time as he is appointed?

Lord Williams of Mostyn: A defendant who is banned from cross-examining a witness on the basis of this Bill becoming law, still has a right to a fair trial. Under the Criminal Justice Act 1988, as amended in 1991, the Committee is aware from our previous discussions that defendants are banned from cross-examining child witnesses in certain cases. That is the present law. There are no arrangements for those who refuse to appoint a legal representative for the purpose.

At the moment therefore a judge has a very unsatisfactory choice. He can either let the evidence against an unrepresented defendant go untested in cross-examination or he can ask the witness questions himself. I take up the point of the noble Lord, Lord Renton, about freedom of choice: the defendant has no freedom of choice if the judge in control of the case wishes to ask those questions by way of testing the evidence in cross-examination. But it is not suitable, if we can avoid it, for the judge to appear even to descend into the arena to ask the witness questions.

We consider that any defendant who is prevented from cross-examining the witness should be allowed to appoint and instruct a lawyer to conduct the cross-examination on his own behalf even if he wants to conduct the rest of his defence himself. We are infringing on his wishes to that limited extent. A lawyer appointed by the defendant can be instructed by him. He will be able to conduct cross-examination fully informed by the defendant's view of the alleged offence and the defence, if any, that he wishes to put forward.

Where a defendant refuses to instruct a representative we believe that the court should ensure that someone other than a member of the court itself should conduct the cross-examination--I take the point of the noble Lord, Lord Wigoder--it could be the magistrates through the chair or the judge. We feel it is better that there is at least some testing of the evidence in the interest of helping the court to its conclusions. Perhaps I can give some examples; it is not too difficult to imagine them.

In response to the noble Lord, Lord Swinfen, there would be no necessity for the lawyer to be constantly in court because there would be full disclosure to him under Clause 37 (7). The lawyer who is court appointed

8 Feb 1999 : Column 23

for this restricted purpose could quite easily conduct a satisfactory examination. For instance, if an alibi notice has been served which is an obligation under the Rules of Court if one is running an alibi defence, he can familiarise himself with the alibi and cross-examine on that if he wants to. He can read through the depositions and familiarise himself with what the defendant may or may not have said in the police interview under the Police and Criminal Evidence Act. He can study the medical evidence if it is a case of rape and cross-examine on that basis. There may be pathological evidence that he can use for cross-examination. So one can in fact conduct a perfectly useful cross-examination on this limited basis.

At the moment, I stress, all that can be done is place either a blanket prohibition on the defendant cross-examining or the judge must do it himself. It is not right for the court to appear to enter the arena and it is a better safeguard for the defendant to have a court-appointed lawyer. We have a criminal justice system which, in the eyes of many--sometimes I feel justifiably--resembles a game. It is not a game for a defendant to dictate that it is his bat and he is going home.

Next Section Back to Table of Contents Lords Hansard Home Page