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Lord Swinfen moved Amendment No. 127:


Page 37, line 23, leave out ("calling") and insert ("opposing the competence of").

The noble Lord said: In moving Amendment No. 127, I shall speak also to Amendments Nos. 128 to 130. I apologise for the noble Lord, Lord Rix, whose name heads the list of those proposing the amendment. Unfortunately, he has been called away. As drafted, this clause places a burden of proof upon the witnesses to prove their competence, which runs counter to the putative assumption of competence found in the previous clause. As a matter of principle, I believe that competence should be assumed unless there is good evidence to dispute that assumption, and to this end it should be for the party opposing the competence of the witness to satisfy the court that that is so. This, I am told, works perfectly well in the Canadian Evidence Act 1998, so Ministers may wish to consult it for guidance.

There are further issues regarding the practical implications of placing the burden of proof in the hands of the opposing party. Clearly, one would not wish disputes of competence to become a strategic tool, exploited by the party opposing the use of the vulnerable witness to the detriment of that witness. Notwithstanding these concerns, I would welcome clarification of the Home Office's position. Amendment No. 128 is consequential for grammatical reasons on Amendment No. 127.

Amendment No. 129 reiterates the point I made earlier in connection with Clause 51. An example has been drawn to my attention which highlights my concern over the way in which assumptions of competence to give sworn evidence are contested. A

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young man with learning disabilities was a prosecution witness in an assault case. As a test of competence, he was asked whether he ever told lies. He reflected for a moment and said, "Yes, sometimes." This was capitalised on by the defence, who argued that he was, by his own admission, an unreliable witness. Asked afterwards what he meant, he said that he sometimes told lies when he was asked whether he liked a dress, or a speech, or somebody's friends. He said that he would always tell the truth about real things and he was regarded as extremely honest in his sheltered employment and his family life. He was, in effect, honest and able to communicate, yet his credibility as a reliable witness was challenged and upheld on the basis of inappropriate questioning.

I believe that two things are vital: first, that this clause is amended so that competence is assumed from the outset; and, secondly, that the rules of court are developed regarding the type of questions permitted to determine capacity to give evidence under oath. Amendment No. 130 is a consequential grammatical correction. I beg to move.

Lord Williams of Mostyn: This is a very important chapter in the Bill. Clause 50(1) states plainly:


    "At every stage in criminal proceedings all persons are (whatever their age) competent to give evidence".
That is extremely important. We do not want competence and the ability to appreciate the significance of the oath investigated unnecessarily. Therefore, the issue will arise only if the court or a party to the proceedings has real doubts about the witness's abilities. After all, one of the purposes of the Bill is to enable witnesses to give evidence in court whose competence or ability to give sworn evidence might be in doubt under current arrangements, which have been seriously criticised.

In every case, the question of competence will arise only if the court or a party to the proceedings questions it. In every case, the decision is on the balance of probabilities. Only the court will be able to question the witness. That is because witnesses for whom the question arises are likely to be vulnerable and because competency and taking the oath are serious issues.

We believe that once a challenge is made it is only right that the party calling the witness should be the one to show the court why the witness should give evidence to the court or why that evidence should not be given unsworn. The court has to come to a conclusion on the balance that I indicated. The court needs to be satisfied about the competence of the witness. In order to do that, the court needs the assistance of the party calling the witness. That party, after all, is likely to know the witness best.

The determination about competence and therefore admissibility may well be made at the same time as the consideration of an application for a special measures direction since those special measures may be critical to the test of whether or not a witness understands questions and can give understandable answers.

We have thought about this matter quite carefully. I believe that the way we have drafted matters is correct.

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8 p.m.

Lord Swinfen: I listened to what the Minister said. I should like to read it and discuss it with my noble friend Lord Rix before the next stage of the Bill. I still have a feeling that we are on opposite sides of the fence on this matter and I wish to reserve my right to return to it.

Lord Williams of Mostyn: If at any stage either my officials or I can be of assistance, then we are only too willing to meet the noble Lord and the noble Lord, Lord Rix, at a time convenient for them. The noble Lord is right. We are probably opposed. However, I am more than happy to make that invitation.

Lord Swinfen: Invitations from the Minister are always very welcome. I shall convey the invitation to my noble friend Lord Rix and it may well be that it will be taken up. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 128 not moved.]

Clause 51 agreed to.

Clause 52 [Determining whether witness to be sworn]:

[Amendments Nos. 129 and 130 not moved.]

Clause 52 agreed to.

Clauses 53 and 54 agreed to.

Clause 55 [Inferences from silence not permissible where no prior access to legal advice]:

Lord Thomas of Gresford moved Amendment No. 131:


Page 39, line 15, after second ("to") insert (", and during,").

The noble Lord said: I understand that Chapter VI arises out of the judgment of the European Court. This is a probing amendment. I shall be grateful if the Minister will indicate that the opportunity to consult a solicitor should continue during the period of questioning, charging or being informed and so on. I beg to move.

Lord Williams of Mostyn: I do not believe that this amendment would add anything of substance to the current safeguards contained in the Police and Criminal Evidence Act together with the existing codes of practice. Clause 55 provides that inferences from silence are not permissible where the accused has not been allowed an opportunity to consult a solicitor prior to interview at the police station.

The noble Lord may be concerned that a suspect, having been given the opportunity to consult a solicitor, may be denied further access to legal advice during interview at the police station.

Section 58 of the Police and Criminal Evidence Act 1984 makes it clear that, where a person has been arrested and held in custody and has been given the opportunity to obtain legal advice, he is entitled to contact a solicitor privately or at any time if he requests to do so.

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PACE Code C dealing with the detention, treatment and questioning of persons by police officers states that when a person has been permitted to consult a solicitor he must be allowed to be present while the suspect is interviewed. Once the interview has begun, the solicitor may be required to leave only if his conduct is so unprofessional that the interview cannot be conducted because of that behaviour. In those circumstances, the code provides also that the suspect should be allowed to consult another solicitor before the interview continues and that solicitor will be given the opportunity to be present at the interview. Therefore, I believe that I have given the noble Lord, Lord Thomas of Gresford, the assurance he seeks.

Lord Thomas of Gresford: I am grateful to the Minister for that assurance and clarification. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 132 and 133 not moved.]

Clause 55 agreed to.

Clauses 56 to 59 agreed to.

Clause 60 [General supplementary provisions]:

[Amendment No. 134 not moved.]

Clause 60 agreed to.

Clauses 61 and 62 agreed to.

Schedule 3 agreed to.

Schedule 4 [Repeals]:

[Amendment No. 135 not moved.]

Lord Williams of Mostyn moved Amendment No. 136:


Page 60, line 47, column 3, leave out from ("Article") to end of line 50 and insert ("22").

On Question, amendment agreed to.

Schedule 4, as amended, agreed to.

Schedule 5 agreed to.

Clause 63 [Short title, commencement and extent]:

Lord Williams of Mostyn moved Amendment No. 137:


Page 42, line 38, after ("provisions;") insert--
("( ) the provisions of paragraph 6 of Schedule 5 and paragraph 1 of that Schedule so far as having effect for the purposes of those provisions;").

On Question, amendment agreed to.

Clause 63, as amended, agreed to.

House resumed: Bill reported with amendments.


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