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Viscount Astor: My Lords, I am grateful to the noble Lord. Before he sits down, perhaps I may put two questions. I preface them by saying that my Amendment No. 35 makes reference to

I realise that "bona fide" is an expression that is open to interpretation and probably does not satisfy the Minister. However, that was my modest attempt to exclude those who might not be regarded as representatives of proper news media (if that is a term that can be used). I should like to put two specific questions to the Minister. First, the noble Lord said that the press would be excluded only in extremely rare circumstances. I believe that the difficulty faced by your Lordships lies in understanding

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those circumstances. Can the Minister give an example of rare circumstances? I believe that that would be helpful.

Secondly, if the press is excluded, does it mean that it lacks those absolute rights to live links, transcripts or tape recordings during the proceedings or at a later stage? It would be helpful if the Minister could answer that question.

Lord Williams of Mostyn: My Lords, the press does not have an absolute right to live links. It does not have a right to have cameras in court. At present it does not have the right to have tape recordings. On my recollection of the law a journalist is entitled to operate a tape recording in court only with the specific authority of the tribunal.

I undertake to think carefully about the legitimate worries of the press. I regard them as genuinely held. They are an important aspect of the proper reporting of court proceedings in this country.

Viscount Astor: My Lords, I am grateful for the Minister's reply. I am sorry to press him, but if the press were excluded for some reason, will it then be given access to those court proceedings at one time or another, whether or not it has an absolute right? Is it the Government's intention that the press should be able to report those proceedings?

Lord Williams of Mostyn: My Lords, the noble Viscount does not understand the present position. No transcript at present is kept by the magistrates' court. Very often now there is no contemporaneous transcript in the Crown Court. There used to be, but the proceedings are now mainly recorded mechanically and transcripts are not available until ordered.

I do not think that the exclusion of the press has anything to do with whether or not it has access to specific pieces of evidence. I repeat: it has no right to a camera; it has no absolute right to take tape recordings; it has only the opportunity to request the court that the proceedings be tape recorded.

I believe that two issues are being confused: first, the exclusion of the press and, secondly, what "rights" it might have. Those are, in fact, limited and are not as extensive as the noble Viscount mentioned.

Viscount Astor: My Lords, I am grateful for the Minister's response. I did not seek to say that the press had greater rights than it does at present. I sought to establish the Government's view in circumstances where the press was excluded. The Minister was unable to give me an example. How will the press report the case when it is excluded for a part of the proceedings? What is the Government's intention? Is the press to be allowed to know what happens in those proceedings?

I recognise that there are two issues here. I believe that they are linked. However, the Minister said that he will continue his discussions with the media, the press and the Guild of Editors. I am delighted to accept that important statement. The Minister has gone a long way with his amendment. The issue will require more

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negotiation between the press and the Minister. We shall wish to consider the matter carefully and return to it at Third Reading. In the light of what the Minister said, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Williams of Mostyn moved Amendment No. 36:

Page 19, line 4, at end insert--
("( ) A special measures direction shall not be taken to provide for the exclusion under this section of representatives of newspapers or news agencies except to the extent that it does so expressly.
( ) Any proceedings from which persons are excluded under this section (whether or not those persons include representatives of newspapers or news agencies) shall nevertheless be taken to be held in public for the purposes of any privilege or exemption from liability available in respect of fair, accurate and contemporaneous reports of legal proceedings held in public.").

On Question, amendment agreed to.

[Amendments Nos. 37 and 38 not moved.]

Clause 26 [Video recorded evidence in chief]:

Lord Thomas of Gresford moved Amendment No. 39:

Page 19, line 8, leave out first ("the witness") and insert ("a witness who is eligible by virtue of section 16(1)").

The noble Lord said: I move now to an entirely different topic. It deals with the special measures proposed in Clause 26 concerning video recorded evidence-in-chief. It is linked to Clause 27: where a special measures direction may provide for a video recording of evidence-in-chief that same direction can include video recorded cross-examination or re-examination.

The purpose of the amendment is to limit the circumstances in which such a direction can be made to exclude all witnesses and to include merely witnesses who are eligible for assistance on the ground of age or incapacity as set out in Clause 16(1) of the Bill.

When I raised the matter in Committee, the noble Lord, Lord Williams of Mostyn, replied at col. 1357 of Hansard of 1st February:

    "There is a case, if it is carefully and cautiously approached, for keeping nervous witnesses out of court and allowing them to give their evidence in a more relaxed way. We need to bear in mind that for witnesses intimidated by threats or fear of violence the law already allows the written statements of absent witnesses to be placed before the court, or for a witness to be granted absolute anonymity in court".
Since the noble Lord referred to the existing law under Section 23 of the Criminal Justice Act 1988, I thought that it would be instructive to compare the existing law with the proposals set out in the Bill in order to indicate the extent to which the law is weakened so far as concerns the interest of the defendant.

Section 23 of the Criminal Justice Act 1988 states that,

    "a statement made by a person in a document shall be admissible in criminal proceedings as evidence in any fact of which direct oral evidence by him would be admissible if"
--there are a number of conditions--

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    "the statement was made to a police officer or some other person charged with the duty of investigating offences or charging offenders".
A statement that is made to a police officer or to a person charged with investigating offences is made in a statutory form and, as the statement will say in terms, any person who says anything he knows to be false or does not believe to be true in that statement can be charged and convicted of an offence and is subject to penal sanctions. Under the 1988 Act the statement has to be one to which the proper provisions apply. The second condition is that,

    "the person who made it does not give oral evidence through fear or because he is kept out of the way".
"Fear" is a rather stronger word than the words employed in the Bill. For these existing provisions to apply, "fear" must be established by evidence to the appropriate standard of proof--that is to say, beyond reasonable doubt--and such evidence must itself be admissible.

The court has a duty to consider where the interests of justice lie with regard to the admission of the evidence. Essentially, for the provisions to apply at present there must be admissible evidence which will prove that a witness is in fear before the statement can be read.

When one looks at the provisions of this Bill, it is helpful, first, to look at the circumstances, set out in Clause 17(1), in which a person becomes eligible for assistance. It is not simply through fear proved by admissible evidence. That clause states that,

    "a witness in criminal proceedings ... is eligible for assistance ... if the court is satisfied that the quality of evidence given by the witness is likely to be diminished by reason of fear or distress on the part of the witness in connection with testifying in the proceedings".
So the first question that one must ask in relation to Clause 17(1) is: what is the standard of proof? Does the court have to be satisfied so that it is sure--the criminal burden of proof--that the quality of evidence is likely to be diminished?

Secondly, it refers not only to reason of fear but also to distress, so that a witness who says, "I cannot give evidence because I am distressed", not, "because I am fearful" can have special measures applied to him. There is no reference in that clause to the court considering the application that was made for the special measures to apply in the interests of justice.

Clause 17(3) states:

    "In determining that question the court must in addition consider any views expressed by the witness".
What does that mean? That does not mean that it is evidence on oath given by the witness. Presumably it can be by a letter or hearsay evidence. The court must consider any views expressed by the witness. The same standard of requirement is not suggested in this Bill.

Under subsection (4) a complainant in a sexual offence is presumed to be eligible for assistance. There is already a weakening there of the circumstances in which special measures can be ordered.

Perhaps I may turn to the particular clause in question and my amendment to it. Clause 26(1) states:

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    "A special measures direction may provide for a video recording of an interview of the witness to be admitted as evidence in chief of the witness".
That is simply an "interview of the witness". It is not qualified in any way. it clearly does not have to satisfy any particular statutory requirements; it is not under oath; and there is no criminal sanction for anything that the witness may say in that interview.

Of course, it has the practical disadvantage that it may apply to any witness who cannot necessarily be identified when the interview takes place. If my amendment were to be adopted, it would be fairly obvious that the proposed witness was either a child, under Clause 16(1), or a person who suffers from a mental disorder or who has a significant impairment of intelligence and social functioning. So, in those circumstances, from the very beginning of an investigation, the police can say, "This is the sort of witness for whom special measures will be required", and an interview can be carried out in a particular way.

However, that video-recorded interview does not, according to Clause 26, have to be carried out even by the police. I presume that a discussion between a complainant and her solicitor or anybody else could be admitted under this special measures dispensation.

Then, as I have said, the circumstances of Clause 27 follow. Once the court makes a determination by way of a special measure in relation to any witness in any sort of case--we are not dealing with sexual complaints but with any sort of case--then the cross-examination by way of a video recording can also be ordered at the same time.

In a subsequent amendment I shall deal with what I consider to be the perils of video cross-examination, but before we reach that stage I must deal with Clause 26. Therefore, my amendment is extremely important. It simply cuts down the broad expression of "witness" to a witness who can be identified at the beginning of an investigation by the police and provides for proper safeguards to be put in place and proper questioning to take place. Instead of the broad definition of "witness" it provides specifically that it shall refer to a child under the age of 17 or a mentally impaired person for whom, perhaps, some special regard must be had. I beg to move.

7.30 p.m.

Lord Williams of Mostyn: My Lords, the purpose of this amendment is to reduce the availability of video-recorded evidence, in the context of Clause 26, and limit it to those persons, as the noble Lord, Lord Thomas of Gresford, said, who are covered by Clause 16(1). It would therefore exclude those who are covered by Clause 17(1).

It is important to remember that, because every critical observation made about interviewing and hearsay, and all the criticisms which the noble Lord made about the introduction of a Clause 26 video-recorded interview in the context of Clause 17, would, it seems to me, apply also, with equal force, to Clause 16. But there is no attempt to remove the possibility of giving Clause 26 interviews in evidence in Clause 16. So there is an inconsistency there.

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I anticipate that this measure would be used mainly for witnesses who are eligible under Clause 16, whether because they are children or they have a disability or disorder which may affect their evidence. I do not anticipate it being widely used for witnesses eligible under Clause 17. I believe that it would be quite difficult to convince a court that the measure should be used.

Also, one needs to remember that the party calling the witness must consider whether the witness's evidence would have more impact if given live at trial, whether by live television link or in the courtroom itself. There may be witnesses who are subject to such intimidation or who have such distress that they would give better evidence if kept completely away from the court on the day of the trial and could give better evidence in a relaxed setting soon after the events. This provision merely seeks to give the court discretion to allow that if it considers it appropriate.

In Committee, the noble Lord, Lord Thomas, said that that is tipping the balance too far against the defendant. I disagree. I return to my point. If it is fair and keeps the appropriate balance in the context of Clause 16, I suggest that is quite fair and is an appropriate balance by virtue of Clause 17.

I repeat what I said in Committee. For those who are intimidated by threats or fear of violence, the written statements of absent witnesses can be put before the court. In some circumstances, witnesses can be given anonymity on a public interest immunity certificate. We are not going that far here. We are merely giving the courts the discretion to make a direction that video-recorded evidence from a relevant witness should be admitted where the court is persuaded that the measure is needed to put important evidence in its best form before the court.

In Committee, the noble Lords, Lord Thomas and Lord Cope, raised the issue of whether the police have proper training to interview a witness. They have now been doing it in relation to child witnesses since the implementation of the Criminal Justice Act 1991. Nothing in the Bill affects the powers of the courts to admit documentary hearsay when the circumstances are appropriate under the Criminal Justice Act 1988, and one should not overlook that point. Section 23 provides for the admissibility of hearsay in extreme circumstances; in other words, when it is the only way of getting the evidence from the witness.

The purpose of the Bill is quite different. We are trying to improve the completeness, coherence and quality of oral evidence given by the witness. I would suggest that that is more of a safeguard in many circumstances than the admissibility of witness statements in writing without the opportunity of any cross-examination. Clause 30(5) does not affect the operation of the law relating to hearsay.

I repeat that in the context of Clause 17 this power is likely to be rarely used. It is more likely to be used in the context of Clause 16.

The noble Lord, Lord Thomas of Gresford, raised the question of how strongly the views must be expressed by the witness and how they are to be expressed. The witness's views are taken into account. It is for the court

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of trial, whether magistrates or a judge presiding in a jury trial, to come to its own conclusion as to whether or not such views are persuasive. That is an exercise with which the courts are familiar at present.

I express my appreciation of the care with which the noble Lord has raised his objections. However, I believe them to be unfounded. I repeat that in the context of Clause 17 this is a power which is likely to be used quite sparingly.

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