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The noble and learned Lord, Lord Ackner, is right. Ideally, the object of the exercise would be to have the cross-examination when the whole matter is fresh in the witness's mind. The more of a disability the witness is under, the more important that is. It is important for children, whose memory span can be very short. I am sure it is equally important in relation to people with other kinds of disability.
The one point that is absolutely plain from the previous discussions is that nothing of the kind is going to happen under Clause 27. The whole of the procedure under the Criminal Procedure and Investigations Act 1996 would have to have been fulfilled before anything could be done by way of applying for cross-examination on video. I cannot see that that is going to happen at a time when the evidence is fresh in the mind of the witness.
Lord Warner: My Lords, I rise to remind noble Lords that the arguments in relation to video evidence of evidence-in-chief are different from the arguments with regard to video evidence of cross-examination and re-examination. The arguments about taking evidence from vulnerable witnesses close to the event are the arguments for video evidence of evidence-in-chief. The arguments in support of Clause 27 relate to the intimidatory effect on some witnesses of being cross-examined in court and the difficulty in some cases of bringing forward and sustaining a prosecution if the witness is to be cross-examined in a court setting.
The point of Clause 27 is to ensure that some of the low levels of prosecution in cases of sexual offences where vulnerable witnesses are concerned would be mitigated by the provisions of the clause, which would enable a greater degree of security to be given to those witnesses, who would not have the fear of being cross-examined and re-examined in a court setting as distinct from on video. Those seem to me to be arguments for retaining Clause 27 as it stands.
Lord Thomas of Gresford: My Lords, before the noble Lord sits down, perhaps I may ask him what distinction he draws between cross-examination which is recorded through, presumably, a video link and cross-examination where the jury or magistrates are in one room and in an adjoining room, subject to the usual safeguards, there is the witness. Why is there more stress on the witness when the trial is actually taking place than when the evidence is recorded when he or she is being cross-examined?
Lord Warner: My Lords, the danger in this debate is that we are looking at these issues through the eyes of self-confident people who are able to cope with an argument and cross-examination. Many of the people we are talking about are terrified of the thought of going into a court and reliving their experience through cross-examination and re-examination about it. From my own experience in the past of dealing with both children and people with learning disabilities in these circumstances, I believe that the prospect of being in court and being cross-examined directly on an episode which was extremely scarring to them makes them reluctant to come forward and be a prosecution witness.
Lord Cope of Berkeley: My Lords, I agree with the noble Lord, Lord Thomas of Gresford, that live evidence, both evidence-in-chief and cross-examination, is to be preferred over video evidence, whether it is live link or recorded. I believe that I get a better and more complete picture of the story a person is telling if I am
However, like the noble Lord, Lord Warner, I do not think that that is what we are talking about here. We are concerned with the protection of vulnerable witnesses, not only in cases of sexual offences but in any case. The question is whether video evidence is merely an electronic means of having screens--which it seems to me it may be in some respects. But we are still left with the distinction which the noble Lord, Lord Thomas, drew between the Clause 23 provisions for evidence by live link and the Clause 27 provisions for video recording of evidence in advance. I believe the difference is that with live link the timing is entirely in the hands of the court in the way it is progressing with consideration of the matter before it and that therefore tension can build up on the child or vulnerable witness who is prepared and waiting to give his or her evidence by live video link, whereas where the recording is done in a prepared way that element of tension is at least minimised.
I therefore believe that there is a case to be made with regard to cross-examination of some vulnerable witnesses, apart from the case for freshness, to which the noble and learned Lord, Lord Ackner, referred. I accept that that applies to evidence-in-chief, but it is extremely difficult to deliver and may adversely affect the quality of the evidence on cross-examination or re-examination if all the other procedures which are necessary, such as disclosure, and so on, before there can be effective cross-examination are to take place. I believe that cross-examination, even by video, needs to be as near to the court proceedings as possible. That does not necessarily rule out for ever the idea of recording it on video as opposed to it being done by way of a live link.
Lord Williams of Mostyn: My Lords, many of the topics that derive from consideration of Clause 27 have been discussed earlier in the context of particular amendments. I shall try, therefore, not to trample over ground that we have already traversed. Clause 27(1)(a) concerns the cross-examination of the witness and any re-examination to be recorded by means of a video recording; in other words, it is not a video cross-examination but a cross-examination that is recorded on video. The two are quite different.
There is much in what all noble Lords have said with which I agree. Essentially, these measures arose from recommendations of the late Judge Pigot in his report of the Advisory Group on Video Evidence published 10 years ago. He suggested that in the case of children and certain other vulnerable adult witnesses a video- recorded preliminary hearing should be held in informal surroundings away from the atmosphere of the court. I entirely agree with the comment of my noble friend Lord Warner. For someone who is accustomed to
The Pigot approach points to two advantages. The first, to which the noble and learned Lord, Lord Ackner, pointed, is that the questioning of the witness can take place at an early stage. Secondly, it is important to echo the observation of my noble friend Lord Warner that witnesses can be questioned in a relaxed setting away from the more charged atmosphere of a court, which for many people is frightening and may involve adjournments, unfamiliarity and contact with strangers. Many of those factors are deeply distressing to some potential witnesses whose evidence at the moment simply goes unheard.
I take the point made certainly in Committee by the noble Viscount, Lord Colville, that the new disclosure provisions, particularly primary and secondary, mean that in many cases the defence is unlikely to be ready or willing to cross-examine until shortly before the trial begins. Obviously, that waters down the first advantage alluded to by the noble and learned Lord, Lord Ackner. The second advantage remains. For some vulnerable witnesses, whether because of age, incapacity, fear or distress, there is benefit in having the cross-examination closer to the event. Although it is not perfect, bearing in mind the problems of primary and secondary disclosure, it is nevertheless better for many than waiting for the trial.
I believe it is unlikely that most witnesses eligible for special measures will need such a provision. I agree with the noble Lord, Lord Thomas, that very often evidence via a live link will help people who need this assistance to give best evidence. There will be a small number of cases, particularly those involving vulnerable witnesses, in which a live link or video-recorded evidence-in-chief with a live link is not enough for them to give their best evidence. Therefore, in a relatively small number of cases that opportunity should be available. That is the reasoning behind Clause 27. There is the protection that the accused will not be present, although he must be able to see and hear what is being said and communicate with his counsel. The technology is perfectly well able to deal with this. The conduct of the cross-examination will always be under the control of the judge or magistrate. There is no need to edit a tape because the conduct of the cross-examination will be under the control of the court. Clause 27 contains the safeguard of the exclusion of video-recorded cross-examination if it is made other than in conformity with rules of court.
We hope that the judges or magistrates who control video-recorded cross-examinations are the same as those who preside at the trial. I appreciate that that cannot be guaranteed, but I expect the Court Service, judiciary and magistracy to make every effort to ensure that that is so. We believe that there are proper safeguards in terms of legal representation and that subsections (5) and (6) are reasonable. I reiterate my promise to consider again whether or not there is a need for an overarch of the
Lord Thomas of Gresford: My Lords, perhaps I may pick up the phrase "a limited number of witnesses". I understand the argument that where freshness of evidence is required, where it is a matter of memory, in respect of those referred to in Clause 16(1)--namely, children under the age of 17 and those suffering from an incapacity--some cross-examination that is recorded has merit. But for those who seek the protection of special measures under Clause 17(1) in order that the quality of their evidence is not diminished other considerations apply. It is not a question of memory but of fear or distress. Therefore their recollection is likely to be as good at the time of trial as any other witness called to give evidence in person.
I asked the noble Lord, Lord Warner, about the distinction between a recorded and a live link cross-examination in so far as it impinges upon the fear and distress of the witness. His answer was that the court would sit on a certain day; the witness would become apprehensive as that day approached, would suffer nerves, and so on. However, if the evidence were to be recorded, there would be an appointment; the day would approach; the witness would know that at the other end of the link where the recording was taking place there was not simply the counsel or solicitor for the defendant but the defendant who has to be there to give instructions. So what difference is there as regards the fear and distress that the witness will suffer whether the evidence is recorded or live?
The court suite consists of a room in relaxed colours. It is fitted out in order to relax a witness when he gives evidence over a live link. I do not see that the situation involves anything more frightening than might occur at some police station, or wherever it is proposed that the video recording takes place. I do not see the distinction.
A point referred to in Committee, and to which I refer again, is that if a recording is made too far in advance of the trial and there is a change of instructions, disclosure or anything else, the interests of justice will demand that the witness comes to the court at trial time and is cross-examined further over a live link on the matters which have emerged. Therefore in a substantial number of cases the prospects are that the witness will be cross-examined on two separate occasions. Those who seek special measures under Clause 17(1) are likely to be in equal fear or distress whether the evidence is recorded or is on a live link. It seems sensible to me to ensure that they are available at the time of trial when all the preparations are complete, all disclosure has taken place and there is no prospect of a second cross-examination arising.