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(".--(1) For the purposes of this section--
(a) a witness in criminal proceedings (other than the accused) is a "qualifying witness" if he--
(i) is not an eligible witness at the time of the hearing (as defined by section 16(3)), but
(ii) was under the age of 17 when a relevant recording was made;
(b) a qualifying 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 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) Subsections (2) to (7) of section (Special provisions relating to child witnesses) shall apply as follows in relation to a qualifying witness--
(a) subsections (2) to (4), so far as relating to the giving of a direction complying with the requirement contained in subsection (3)(a), shall apply to a qualifying witness in respect of the relevant recording as they apply to a child witness (within the meaning of that section);
(b) subsection (5), so far as relating to the giving of such a direction, shall apply to a qualifying witness in need of special protection as it applies to a child witness in need of special protection (within the meaning of that section); and

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(c) subsections (6) and (7) shall apply to a qualifying witness in need of special protection by virtue of subsection (1)(b)(i) above as they apply to such a child witness as is mentioned in subsection (6).").

Lord Williams of Mostyn : My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 6 to 9.

We discussed at length, and quite rightly, the need for special protection for children involved in criminal cases. It was accepted by all who spoke that children need special help. They are better able to give evidence and suffer less distress if they are kept out of the courtroom. In particular, the sooner after the alleged offence they are allowed to give evidence the better their recollection of that offence is likely to be. That is why children in violent and sexual offence cases now routinely give evidence-in-chief on video, and further evidence at trial through a live television link.

The Bill extends eligibility for protection to all child witnesses. But it requires the court to consider, for all children, whether special measures would actually improve their evidence.

Several lobby groups told us that they were concerned that, for children in sex and violence cases, this Bill reduces the certainty they have under the current legislation that they will get help to give evidence. They were concerned that we were not making the best use of this opportunity to strengthen protection for child witnesses. So this group of amendments creates a new category of witness: those in sex and violence cases, who require special protection. These witnesses need and would have a high degree of certainty about how they are going to give evidence.

All child witnesses in these cases would give their evidence in chief by means of a pre-recorded video unless it were not in the interests of justice for the recording to be admitted. Child witnesses in violent offence cases would then go on to give further evidence through live link at trial.

When we are ready to implement the measure, children in sexual offence cases would be cross-examined on video before the trial unless they had told the court that they did not want to be cross- examined until the day of trial. This last provision is a target we are setting ourselves to work towards. We believe that video-recorded cross-examination can work, and we are committed to implementing it as the norm for child witnesses in sex offence cases. We have always been committed to making this measure available for witnesses who are most in need of protection. But, as we have discussed in earlier debates, there are a number of technical and procedural difficulties that we will need to work with all criminal justice agencies to overcome.

We shall consider setting progressive targets for implementation, if that is what it will take. The implementation programme is a question for the multi-agency implementation steering group which is already hard at work on deciding the best approach.

It may be that the working group decides that the best way to get this measure off the ground is first to bring it in for the Crown Court for very young witnesses, and

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we are prepared to consider that. If it is recommended that we wait until all eligible witnesses can be catered for nationwide, we shall consider that, too.

In Clause 18(3), the Bill gives the Secretary of State flexibility to commence provisions for different types of cases, circumstances or areas as he thinks fit. That is designed to bring about a method of implementation that is realistic and workable. Video-examination will mean a hearing centred on the child, on a day set aside for the hearing, with the child kept completely away from the trial himself. We believe that that is a fair measure to enable children in these very difficult cases to give their best evidence and suffer the least distress. However, the hearing will be under the control of a judge. The questioning will be conducted by the lawyer for the opposing party, through an intermediary if the judge approves one, and cross-examination can be re-opened if further evidence becomes available or it is otherwise in the interests of justice.

Moved, That the House do agree with the Commons in their Amendments Nos. 6 to 9.--(Lord Williams of Mostyn.)

On Question, Motion agreed to.

5.45 p.m.



Clause 29, page 22, line 45, after ("disorder") insert ("or other impairment").

Lord Williams of Mostyn: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 10.

Moved, That the House do agree with the Commons in their Amendment No. 10.--(Lord Williams of Mostyn.)

On Question, Motion agreed to.



Clause 40, page 29, leave out lines 13 to 16 and insert--

("(c) it is an issue of consent and the sexual behaviour of the complainant to which the evidence or question relates is alleged to have been, in any respect, so similar--
(i) to any sexual behaviour of the complainant which (according to evidence adduced or to be adduced by or on behalf of the accused) took place as part of the event which is the subject matter of the charge against the accused, or
(ii) to any other sexual behaviour of the complainant which (according to such evidence) took place at or about the same time as that event,
that the similarity").

Lord Williams of Mostyn: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 11. I shall speak also to Amendments Nos. 12, 13 and 14.

These amendments to Clauses 40 and 41 correct a technical flaw in the amendments which I laid on Report. I am grateful to Ms Vera Baird, who brought the matter to our attention. On Report, I laid an amendment--significantly in response to the speech

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made by my noble friend Lady Mallalieu in Committee--to allow the defence to introduce evidence of the complainant's previous sexual behaviour if it was strikingly similar to the complainant's behaviour during the events constituting the alleged offence, or at or about the same time as the alleged offence.

However, having thought about it, I realised that the amendment was defective in that it allowed evidence of previous sexual behaviour to be admitted if it was similar to the complainant's behaviour at or at about the same time as the alleged offence, but not if the previous behaviour was similar to how the complainant behaved during the alleged offence itself. These amendments are designed to remedy that flaw.

The amendment to Clause 41 completes the effect of the amendment to Clause 40. It also allows the defence to explain or rebut evidence which the prosecution claims relates to the alleged offence, but which the defence considers to be evidence of a complainant's previous sexual behaviour.

That would not have been possible earlier, as only evidence which the prosecution claimed was evidence of previous behaviour could be rebutted under Clause 40(5). Therefore, we wanted to safeguard the interests of the defendant to allow them to rebut all prosecution evidence--if the judge gives leave--as a balance to the greater freedom the prosecution have to introduce evidence of sexual behaviour.

The amendments to Clause 42 require judges and magistrates to give reasons for their decisions on admitting, or refusing to admit, sexual behaviour evidence. We received several representations and we thought that the points made were sensible and important. Therefore, we introduced these amendments.

Clause 40 introduces a tight framework setting down what is relevant and what is not. We wished to get this framework right, in the interests of a fair trial for the defendant. During our debate on Report, we heard several persuasive speeches about the need for strikingly similar provision so that in extreme circumstances the defendant can support his claim that the complainant consented to the act constituting the alleged offence by reference to previous behaviour. The provision, in what will be--if it is agreed--Section 41(3)(c), is very narrowly drawn. Only information that cannot reasonably be explained as a coincidence can be admitted. All evidence would, therefore, have to be very unusual to be admitted.

Commonplace events such as previous one-night stands, or having sex with someone of the same race, or in a car, would be inadmissible under this subsection, because they could reasonably be considered a coincidence. The Romeo and Juliet scene was the example offered by the noble Baroness, Lady Mallalieu, but even that example would only be admissible if it were very similar to defence evidence.

The prosecution are not subject to the same restrictions as the defence under this clause. Unless the defence can challenge all prosecution evidence, through the provision in subsection (5), they may not be able to introduce evidence to explain or rebut certain pieces of prosecution evidence. We must allow

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the defence to suggest, where necessary to their case, that evidence the prosecution claim relates to the alleged offence--such as bruising, or other injuries--was caused as a result of the complainant's previous sexual behaviour.

One example of the problem with the Bill as currently drafted is that, if a defendant in a rape case was running defence of mistaken identity--that he did not have sex with the complainant at all--he could not rebut the prosecution's claim that the complainant did not consent, because he would not be arguing that she did consent. However, the prosecution might have introduced evidence to support the complainant's lack of consent, such as bruising or cuts. The defendant could not challenge that under the Bill as currently drafted. But if the defendant knew that the bruising had been caused by the complainant's previous sexual behaviour, he should be able to introduce evidence showing that. Otherwise, the jury might be misled.

That is the thinking behind the amendments, which I commend to your Lordships.

Moved, That the House do agree with the Commons in their Amendment No. 11.--(Lord Williams of Mostyn.)

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