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National Minimum Wage Regulations 1999

Lord Sainsbury of Turville: My Lords, I beg to move.

Moved, That the draft regulations laid before the House on 16th February be approved [10th Report from the Joint Committee].--(Lord Sainsbury of Turville.)

On Question, Motion agreed to.

Youth Justice and Criminal Evidence Bill [H.L.]

8.24 p.m.

Consideration of amendments on Report resumed on Clause 26.

Viscount Colville of Culross moved Amendment No. 40:

Page 19, line 15, at beginning insert ("Subject to section 30(5)").

The noble Viscount said: My Lords, at the Committee stage I asked the noble Lord, Lord Williams of Mostyn, to consider the rather difficult problem confronting courts--and it will be Crown Courts and magistrates' courts--when they decide whether to admit evidence which comes via a video recording. The noble Lord was kind enough to write to me, as he has done for so many others, and he said, first of all, that there is the test that appears in Clause 26(2) and (3). He also pointed out that, by virtue of Clause 30(5), the provisions of the Police and Criminal Evidence Act, Section 78 (which is a familiar and widespread discretion) will also apply, as indeed I think is the case now. The difficulty is, as the noble Lord, Lord Thomas of Gresford, was setting out before the adjournment, that we are now proposing to deal with a much wider range of potential witnesses who will give their evidence via video recordings. We therefore need to be clear about the type of discretion and the criteria upon which a court is to use its discretion if there is an objection to any such evidence.

The more I have looked at this the more difficult it has seemed to me to be. I am not sure that this is the right amendment at all. I have come to the conclusion that it is probably better if one leaves out altogether subsection (2) and subsection (3) of Clause 26. However, that is not the amendment, and I am at present probing how the Government are intending that this should be dealt with by the courts. The only existing statutory special measures that I know of are in relation to the video recording of children's evidence. They were put into the Criminal Justice Act 1988 by some new sections in the Criminal Justice Act 1991. These are all being repealed and replaced by the provisions of this Bill. I am sure that the noble Lord, Lord Williams, is familiar with the case of G v. DPP, where Lord Justice Phillips, as he then was, now the noble and learned Lord, Lord Phillips, gave a lapidary judgment in the Divisional Court in a difficult case arising out of the evidence of two small children.

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There are a number of aspects of this case which are illustrative of the problems that are likely to arise. The first point that emerges is that when Lord Justice Phillips looked at the existing special provisions for deciding on the admissibility of children's evidence, which is the same to all intents and purposes as what is now in Clause 26(2) and (3), he said that there was no material difference between them and Section 78 of the Police and Criminal Evidence Act. If that is right, my original proposition that we do not need subsections (2) and (3) is probably the correct response to all of this, because of course Section 78, as I said, is saved by Clause 30(5).

However, the case goes on to illustrate graphically the problems that will arise. As I said, they will arise in the magistrates' court as well as in the Crown Court. I suggest to the House that we ought to be abundantly clear about how they are to deal with these matters. The case of G turned on the proposition that a highly skilled psychologist should be called to give evidence--his report ran to 115 pages--about the reliability of the evidence of the two children concerned. They were perfectly normal children and there was nothing to suggest they were particularly unreliable. However, he was asked by the defence to produce this report and for the magistrates' court to rely upon it, and then the Crown Court on appeal. After a great deal of argument the magistrate decided--it was a stipendiary--that he would not and the Crown Court said that it would not rely on it either. The Divisional Court, under Lord Justice Phillips, said that it was quite right not to do so because in the case of normal children there was no need to have a psychologist's report to decide whether their evidence was admissible or reliable.

However, the point that emerges from this is whether the evidence can be considered to be reliable. That may be comparatively simple when one is dealing with ordinary, straightforward children. It may be a little difficult if they are young, but, on the other hand, there is by now a substantial body of experience--the noble Lord, Lord Williams, mentioned this before dinner--in the hands of the police and social workers on preparing witness statements by children. There is the memorandum of good practice which was prepared after the Cleveland case which is widely used.

This Bill, however, embraces a far wider scope of people who potentially may give evidence by video link. We were talking about them before dinner. I refer to Clauses 16 and 17. As to some of them, I suggest to your Lordships that the reliability of their evidence may be a live issue indeed. There may well be the necessity to call expert evidence on the whole of that subject. There will, of course, be borderline cases where it is not immediately clear to anyone whether there should be expert evidence.

I believe that the further one delves into this, the more sensible it is to rely upon the now widely used powers to admit or to reject evidence under Section 78 of the Police and Criminal Evidence Act. We do not need a new, separate and probably unnecessary--if Lord Justice Phillips is right--test to be written into the Bill. But at least if the Government will not give way on this matter--I do not ask the noble Lord, Lord Williams, to

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give a definitive answer tonight because I only put some of this in the letter I wrote to him--they at least ought to give a signpost to the courts when they come to consider some of these difficult issues.

I did not see Clause 30(5)--or, if I did, I did not comprehend that it took in Section 78 of the Police and Criminal Evidence Act and applied it to the whole of this chapter of Part II. I do not believe that all practitioners, all courts and all magistrates will necessarily see that either. Therefore at the very least I put down this amendment in order to provide them with a little signpost. They would at least have their attention drawn to this and perhaps they would have their attention drawn to the fact that it has now been said by Lord Justice Phillips that there is no great difference between their familiar test and that which is in the legislation.

The whole of this is experimental. The noble Lord, Lord Williams, said that this provision seeks to improve the quality of evidence. I am sure it is right to try to do this, but I think that we ought to make it workable, otherwise the whole exercise will end up in a prodigious flow of appeals and all kinds of problems in the course of getting these cases right. I am concerned about this because I know the way in which it would have to be done. I know that it is not necessarily easy to find any guidance when one is sitting in a remote court away from London and having to do one's best in unfamiliar territory. I hope that the noble Lord, Lord Williams, will not think that I am trying to impose upon him anything which is in the least sinister. I just want some clarity about this. I do at least suggest that we ought to have the guideline which I put forward in this amendment. I beg to move.

Lord Williams of Mostyn: My Lords, I am grateful to the noble Viscount for raising this matter and also for his courtesy in correspondence with me. I believe that there is a strong case which he has outlined for providing clear published guidance on these measures when they have received Royal Assent. However, I shall deal with his point now.

In Committee we had a discussion about what self-direction a court should give itself when considering the admissibility of video recorded evidence-in-chief. Subsections (2) and (3) of Clause 26 effectively reproduce the current test for the admission of such evidence in Section 32(a) of the Criminal Justice Act 1988. Subsection (2) of course provides that recordings of this kind may be introduced only if that would be in the interests of justice. Subsection (3) empowers the court to edit recordings to excise any part of them which the court considers to be so prejudicial to the accused that the prejudice which would result outweighs the desirability of using the whole recording; in other words, the well-known balancing exercise.

If further guidance is needed, the noble Viscount is quite right in that a judge may look to Sections 78, 82 and 83 of the Police and Criminal Evidence Act on the admissibility of prosecution evidence and of course to the quite substantial case law which has been built up around those provisions. Clause 30(5) makes it quite plain that the powers in Clause 26, and indeed in the

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rest of the provisions in Chapter I of Part II of the Bill, do not affect the operation of any rule of law relating to evidence in criminal proceedings. If further help is needed, one can look to Clause 58(2) of the Bill which provides that nothing in Part II of the Bill affects any power of a court to exclude evidence at its discretion, whether by preventing questions being put or otherwise.

I well appreciate the noble Viscount's intentions. I hope that I have been able to give the clarity that he looked for. I have already indicated that we shall seek to provide clear guidance on these points for judges and other courts to follow. I do not think therefore that the proposed amendment, if it were included in the Bill, would be of assistance. However, I recognise the great service the noble Viscount has done in giving me the opportunity to, I hope, clarify matters.

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