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Baroness Carnegy of Lour: My Lords, in his comments on Amendment No. 27, the Minister said that it was to enable Scottish Ministers to put down commencement orders. But are the matters referred to here matters for which Westminster has been legislating after the matter has been devolved to Scotland? If so, the House is doing a little more than the Minister said. Are we using the clause in the Scotland Act, which provides that Westminster can continue to legislate on any matter already devolved if it finds it necessary to do so?

Lord Williams of Mostyn: My Lords, because your Lordships disagreed to certain matters and the timetable was disrupted, Clause 27 is necessary to enable the Scottish Ministers to make the commencement orders. There may be similar occasions in future, although they should diminish with time. As I said to the noble Lord, Lord Cope of Berkeley, this is simply the mechanism which allows the Scottish Ministers to make the commencement orders. I do not see anything wrong in principle in that.

On Question, Motion agreed to.

26 Jul 1999 : Column 1325

COMMONS AMENDMENT

4

Clause 17, page 13, line 13, leave out ("section") and insert ("subsection").

Lord Williams of Mostyn: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 4. It is grouped with Amendment No. 5.

The purpose of these amendments is to strengthen the presumption that sexual offence complainants are eligible for assistance; in other words, they will be deemed eligible unless they specifically inform the court that they do not want to be considered as eligible.

It is notorious that a good deal of material shows that many sex offence complainants who choose to report a sexual offence to the police decide not to go any further with it. We do not want the trial process to make it too difficult for complainants to take their case through to trial. It was suggested that the presumption in Clause 17 as originally drafted did not go far enough to assure rape complainants that they would receive help.

Therefore, the amendments strengthen the initial presumption of eligibility for sex offence complainants. In other words, they will be considered eligible for help unless they tell the court they do not want to be helped. It is important that the court retains the discretion to decide which special measure or combination of measures will improve the complainant's evidence. That will include consideration of whether the measure might tend to inhibit the ability of the defence to test the complainant's evidence. I stress again that if the court decides that none of the special measures would improve the complainant's evidence, it will not make any available.

Moved, That the House do agree with the Commons in their Amendment No. 4.--(Lord Williams of Mostyn.)

Lord Desai: My Lords, I welcome the amendments. Your Lordships may recall that I spoke on the matter when the Bill was before the House. The Commons have improved the provision immensely. I shall say no more about it because there was an excellent discussion in another place, especially the contribution from my honourable friend the Member for South Swindon. The amendments considerably improve the complainant's position and I look forward to its implementation.

On Question, Motion agreed to.

COMMONS AMENDMENT

5

Clause 17, page 13, line 36, leave out from ("offence") to end of line 39 and insert ("(or to that offence and any other offences), the witness is eligible for assistance in relation to those proceedings by virtue of this subsection unless the witness has informed the court of the witness' wish not to be so eligible by virtue of this subsection.").

Lord Williams of Mostyn: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 5.

Moved, That the House do agree with the Commons in their Amendment No. 5.--(Lord Williams of Mostyn.)

On Question, Motion agreed to.

26 Jul 1999 : Column 1326

COMMONS AMENDMENTS

6

Clause 20, page 15, line 29, leave out ("21(6)") and insert ("(Special provisions relating to child witnesses)(8)").


7

Leave out Clause 21.


8

After Clause 21, insert the following new clause--

SPECIAL PROVISIONS RELATING TO CHILD WITNESSES

(".--(1) For the purposes of this section--
(a) a witness in criminal proceedings is a "child witness" if he is an eligible witness by reason of section 16(1)(a) (whether or not he is an eligible witness by reason of any other provision of section 16 or 17);
(b) a child witness is "in need of special protection" if the offence (or any of the offences) to which the proceedings relate is--
(i) an offence falling within section 34(3)(a) (sexual offences etc.), or
(ii) an offence falling within section 34(3)(b), (c) or (d) (kidnapping, assaults etc.); and
(c) a "relevant recording", in relation to a child witness, is a video recording of an interview of the witness made with a view to its admission as evidence in chief of the witness.
(2) Where the court, in making a determination for the purposes of section 19(2), determines that a witness in criminal proceedings is a child witness, the court must--
(a) first have regard to subsections (3) to (7) below; and
(b) then have regard to section 19(2);
and for the purposes of section 19(2), as it then applies to the witness, any special measures required to be applied in relation to him by virtue of this section shall be treated as if they were measures determined by the court, pursuant to section 19(2)(a) and (b)(i), to be ones that (whether on their own or with any other special measures) would be likely to maximise, so far as practicable, the quality of his evidence.
(3) The primary rule in the case of a child witness is that the court must give a special measures direction in relation to the witness which complies with the following requirements--
(a) it must provide for any relevant recording to be admitted under section 26 (video recorded evidence in chief); and
(b) it must provide for any evidence given by the witness in the proceedings which is not given by means of a video recording (whether in chief or otherwise) to be given by means of a live link in accordance with section 23.
(4) The primary rule is subject to the following limitations--
(a) the requirement contained in subsection (3)(a) or (b) has effect subject to the availability (within the meaning of section 18(2)) of the special measure in question in relation to the witness;
(b) the requirement contained in subsection (3)(a) also has effect subject to section 26(2); and
(c) the rule does not apply to the extent that the court is satisfied that compliance with it would not be likely to maximise the quality of the witness's evidence so far as practicable (whether because the application to that evidence of one or more other special measures available in relation to the witness would have that result or for any other reason).
(5) However, subsection (4)(c) does not apply in relation to a child witness in need of special protection.
(6) Where a child witness is in need of special protection by virtue of subsection (1)(b)(i), any special measures direction given by the court which complies with the requirement contained in subsection (3)(a) must in addition provide for the special measure available under section 27 (video recorded cross-examination or re-examination) to apply in relation to--
(a) any cross-examination of the witness otherwise than by the accused in person, and
(b) any subsequent re-examination.

26 Jul 1999 : Column 1327


(7) The requirement contained in subsection (6) has effect subject to the following limitations--
(a) it has effect subject to the availability (within the meaning of section 18(2)) of that special measure in relation to the witness; and
(b) it does not apply if the witness has informed the court that he does not want that special measure to apply in relation to him.
(8) Where a special measures direction is given in relation to a child witness who is an eligible witness by reason only of section 16(1)(a), then--
(a) subject to subsection (9) below, and
(b) except where the witness has already begun to give evidence in the proceedings,
the direction shall cease to have effect at the time when the witness attains the age of 17.
(9) Where a special measures direction is given in relation to a child witness who is an eligible witness by reason only of section 16(1)(a) and--
(a) the direction provides--
(i) for any relevant recording to be admitted under section 26 as evidence in chief of the witness, or
(ii) for the special measure available under section 27 to apply in relation to the witness, and
(b) if it provides for that special measure to so apply, the witness is still under the age of 17 when the video recording is made for the purposes of section 27,
then, so far as it provides as mentioned in paragraph (a)(i) or (ii) above, the direction shall continue to have effect in accordance with section 20(1) even though the witness subsequently attains that age.").
9

After Clause 21, insert the following new clause--


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