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Lord Swinfen moved Amendment No. 45:

Page 22, line 18, at end insert--
("( ) Rules of court may make provision for the appointment and appropriate training of an intermediary.").

The noble Lord said: My Lords, this amendment to Clause 28 requests the introduction of a statutory requirement for the rules of court to make provision for the appointment and appropriate training of intermediaries. The comments made on this point in Committee still hold.

It is vital that standardised guidance should be available to accompany the introduction of this innovative measure. Witnesses with learning difficulties could benefit enormously from the support of intermediaries and it is a measure which I wholeheartedly support. Nevertheless, I believe that this is also one of the most controversial measures in the Bill which will need to be effective from the outset. If intermediary schemes are not properly and systematically implemented, we run the risk of them being jettisoned on the grounds that they are likely to inhibit the production of quality evidence, a result which would prove to be extremely detrimental to some vulnerable witnesses with learning disabilities. I beg to move.

Lord Williams of Mostyn: My Lords, I agree that an intermediary must be fit for the purpose before he is trusted by the court. Clause 28 already provides that anyone appointed to undertake the task must be approved by the court. I can tell your Lordships--and I hope it is of assistance to the noble Lord who moved the amendment--that before Clause 28 can be implemented, we shall need to have proper guidelines setting out the role of intermediaries and what qualifications and training would be appropriate.

The steering group to which I referred earlier, implementing the Speaking Up for Justice recommendations, is looking at what that guidance should be both for potential intermediaries and those who may be involved in questioning a witness with an intermediary's assistance. That latter point should not be overlooked in terms of professional training and competence.

There are similar schemes in jurisdictions as diverse as South Africa, the United States, Western Australia, New Zealand and the Irish Republic. We are looking at the lessons which we can learn from them.

It has taken years to develop an accreditation scheme and training for language interpreters. An agreement has now been introduced with the aim of standardising arrangements for sign language interpreters, which has been adopted by all the main agencies. We hope to ensure that, by the end of 2001, every sign language interpreter working in courts and police stations will be selected from the Council for the Advancement of Communication with Deaf People directory. In the interim, agencies are encouraged to use accredited interpreters wherever possible.

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Certainly, I need to remind myself that the communication needs of witnesses with whom intermediaries work vary enormously. Some of those witnesses may be children and some may be disabled. For a variety of reasons, it is wrong just to use the tag "disabled" without remembering the different natures, causes and consequences of disabilities. There are a variety of effects. Some people may be disordered although capable of giving evidence, which, in some circumstances, is capable of being safely relied upon.

We believe that the standards and safeguards need to be flexible. We do not want rigidity in the form of a statutory regime. We believe that decent working guidelines are likely to be better. We do not wish to deny access to justice for those witnesses who have difficulties. Therefore, I hope that I have met the spirit of what the noble Lord is seeking. I hope that I have assured him that we are working towards a common purpose. I believe that our way is likely to achieve a better result.

Lord Swinfen: My Lords, that is a most encouraging response for which I thank the Minister. I am sure that when the noble Lord, Lord Rix, reads it, he will be as encouraged as I am. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 31 [Warning to jury]:

Lord Swinfen moved Amendment No. 46:

Page 23, line 20, at end insert (", or
(b) a statement made under section 30(1).").

The noble Lord said: My Lords, this amendment extends the existing warning to the jury against pre-judging the defendant in cases where special measures are employed to include a warning against pre-judging the witness. This is vital to avoid both unwitting and deliberate prejudice on the part of the jury who may not be aware of why the special measures are being employed, and the role those special measures have in improving the quality of the witness's evidence.

The noble Lord, Lord Rix, has corresponded at length with the Minister in order to impress upon him the importance of the amendment. He has asked me to pass on his thanks to the Minister. Perhaps I may also thank him for copying all correspondence on the Bill to me. That has been most useful.

The Minister advised the noble Lord, Lord Rix, that training of the judiciary is the crux of the matter. The Minister has indicated on earlier occasions that he expects judges to refer to the use of special measures as part of their summing up and their outline of proper inferences in each case. I invite him today to advise the House of his department's plans to ensure that judges are well trained in the proper use of special measures and that, in turn, they also educate the jury in cases where special measures are employed.

My final point is that I fully accept the need for a warning to protect the civil liberties of the defendant. In no way do I wish to detract from that. However, it seems to me that as a number of these special measures have never been used before, one would wish to guard against

2 Mar 1999 : Column 1649

prejudice in the direction of either party. It needs to be understood that special measures are being employed to enhance the quality of evidence produced and that their use has no bearing on the culpability of either party. I beg to move.

Lord Williams of Mostyn: My Lords, Clause 30(2) provides that evidence given in the context that we are discussing has the same status as if it has been given in direct oral evidence in court. Subsection (4) provides that in estimating the weight to be attached to the statement, the court must have regard to all the circumstances from which an inference can reasonably be drawn.

I am, indeed, grateful for the correspondence and the conversations I have had with the noble Lord, Lord Rix. I am able to tell the House what I told him; that is, in those circumstances I do not believe that a judge would fail to give the jury instruction on the status of the evidence, the new law on competency and the significance, if any, of special measures used in the trial. I do not believe that judges would fail to include mention of the provision in Clause 30(2) to the effect which I indicated a moment ago, that they are to be treated as if made in direct oral testimony.

As the noble Lord stated, the key to this is training--I repeat, not just for judges and magistrates, but for practitioners as well. We are developing a training strategy which is being taken forward by the inter-departmental steering group, which I mentioned earlier. I am happy to tell your Lordships that that group is working in close consultation with the Judicial Studies Board, which does remarkable work in the training of the judiciary. It is, of course, a judge-led body responsible for judicial training, not only of judges but the magistracy as well.

I know that the Judicial Studies Board, and in particular its Equal Treatment Advisory Committee, is happy to consider any suggestions for improving the training of judges, including magistrates, in relation to these issues.

I think that that should be a reasonable comfort. It is the undertaking that I have given to the noble Lord, Lord Rix, in our correspondence and conversations.

Lord Swinfen: My Lords, I thank the Minister for his response which is, I believe, a comfort. It is good to have it on the official record. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Swinfen moved Amendment No. 47:

Page 23, line 20, at end insert--
("( ) For the avoidance of doubt, the judge must not warn the jury that it is unsafe to rely on the evidence of a witness on the ground only that the witness is a patient in a special hospital detained under Part III of the Mental Health Act 1983.").

The noble Lord said: My Lords, this is an amendment that I was asked to table by the Law Society. I understand that in the early 1980s a number of nurses at Rampton Special Hospital were

2 Mar 1999 : Column 1650

prosecuted for the ill-treatment of several patients. This was under the provisions of Section 126 of the Mental Health Act 1959 which was subsequently replaced by a similar provision in Section 127 of the Mental Health Act 1983. The nurses' appeal against their conviction was upheld in the Judicial Committee of your Lordships' House in R v. Spencer in 1987.

I am told that the prosecution case depended wholly on the evidence of patients who were detained at Rampton as a result of earlier criminal proceedings against them. In considering the appeal, the committee ruled that while the full corroboration warning given in cases of sexual offences was not required in a case under the provisions of the Mental Health Act, juries nevertheless had to be warned in clear terms of the dangers of convicting on the unsupported evidence of a single patient and that one patient could not be treated as supporting the evidence of another patient.

In the Judicial Committee the noble and learned Lord, Lord Ackner, to whom I have shown my notes and who is therefore aware of what I will be saying, stated that three dangers in this case justified the jury being told to act with great caution: first, that the patients were all persons of bad character; secondly, that they were all suffering from some form of mental disorder; and, thirdly, that they might all have conspired together to make false allegations.

The noble and learned Lord prefaced those three criteria for warning the jury to treat the patients' evidence with caution by saying:

    "The complainants were men of bad character. They had been sent to Rampton rather than to an ordinary prison ... [They were] mentally unbalanced ... anti-authoritarian, prone to lie or exaggerate ... [and] could well have old scores which they were seeking to pay off".

The ruling in the above case is clearly only applicable to cases involving mentally disordered people who have committed criminal offences. However, it has served to encourage the discriminatory belief that people with mental health problems or learning disabilities, particularly special hospital patients, can never be believed.

A number of inquiries have taken place into all three special hospitals in the past 20 years. Several of those have either looked specifically at allegations of ill-treatment of patients by staff or have raised that as a major cause for concern. Many of those inquiries commented on the inadequacies of the hospital complaints procedures and the difficulties faced by patients in getting their complaints taken seriously.

Patients in special hospitals are clearly vulnerable and should be entitled to protection against abuse and ill-treatment. They should therefore be able to pursue allegations of abuse against them and be eligible for the special measures available under this Bill to enable them to give their best evidence in court. It is then for the court to decide the weight of the evidence put before it as in other cases. It is possible that provisions in this Bill will make the ruling in R v. Spencer redundant. The amendment seeks assurances, for the avoidance of doubt, that vulnerable witnesses will not be excluded from the Bill's provisions purely

2 Mar 1999 : Column 1651

on the grounds that they were patients in special hospitals and detained under the Mental Health Act. I beg to move.

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