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Baroness Anelay of St Johns moved Amendment No. 85:



"( ) confirm that the witness has received independent legal advice"

The noble Baroness said: Schedule 2 does not ensure that evidence given by telephone is protected in the same way as evidence given by television links. One assumes that the difference is simply due to the fact that a witness cannot be compelled to give telephone evidence and that it is not admissible evidence in the United Kingdom. The purpose of the amendment is to ensure that the defendant has an opportunity to receive legal advice. I beg to move.

Lord Goodhart: The names of my noble friend Lord Dholakia and myself are attached to the amendment, but I shall speak also to Amendment No. 91A, which is in this group but which is in our names alone.

The purpose of Amendment No. 91A is to ensure that someone who is giving evidence by television link in a court is entitled to receive legal advice in connection with his right to privilege. The arrangements for television link evidence are a little unclear. It is necessary under the Bill that they are given in a court. I assume that the court is more likely than not to consist of a district judge sitting in a magistrates' court—it seems unlikely that it would go higher than that or that it would be heard by a lay magistrate.

The role of what I shall assume to be the district judge is very limited. The district judge sits there presiding while the television camera is on the face of the witness. There will obviously be a television screen in the court at the other end, from where the questions will be asked. The duties of the nominated court appear to be only to establish the identity of the witness, under paragraph 4 of Schedule 2, and to intervene where it considers that necessary to safeguard the rights of the witness, under Paragraph 5. Under Paragraph 9(1),


    "the witness cannot be compelled to give any evidence which he could not be compelled to give in criminal proceedings in the part of the United Kingdom in which the nominated court exercises jurisdiction".

That is directed primarily at the privilege against self-incrimination. I do not need to refer to the following sub-paragraphs.

The examination and cross-examination of the witness may—more likely than not, will, where he or she comes from a non-English speaking country—be carried out in a foreign language. Paragraph 8 of Schedule 2 states:


    "Rules of court . . . must make provision for the use of interpreters".

I find it unlikely that those rules are intended to ensure that all the questions put to and answers given by the witness must be translated for the benefit of a judge who has no possible interest in the substance of the case. If they must be translated, that will make the proceedings much more lengthy and expensive than necessary.

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On the other hand, if they are not translated, because the judge will not understand what is going on he will be unable to decide whether the witness is being asked a question that he or she is entitled to refuse to answer on grounds of the privilege against self-incrimination. In those circumstances, the witness ought at least to be given advance advice of what questions he or she might be asked but may be entitled to refuse to answer on grounds of self-incrimination. Otherwise, it is hard to see how those rights can be protected.

The whole question is rather difficult. It may be that translation is intended even in the case of, say, a Polish witness being examined and cross-examined in Polish, but I should like to know what is the position.

Lord Bassam of Brighton: I certainly understand the spirit and intent behind the amendments. The noble Baroness gave the game away when she referred to the defendant, when perhaps she meant the witness. I can see where she is coming from in saying that. I can foresee some of the difficulties that the noble Lord, Lord Goodhart, has raised and shall try to cover them.

The first amendment, Amendment No. 85, would provide additional safeguards for witnesses being requested to provide evidence by telephone link. It would require the requesting authority to confirm that it had received independent legal advice agreeing to participate. The noble Lord, Lord Goodhart, gave a good exposition of the second amendment, Amendment No. 91A. It would provide additional safeguards by requiring rules of court to provide for legal advice to be given "where appropriate".

Although we understand the desire to protect the rights of witnesses—because that is what they are—the Government believe the amendments to be unnecessary and that witnesses will have sufficient protection in any event. To go a step further than that, the amendments would introduce inconsistency between the assistance available to witnesses in domestic proceedings and those participating in foreign proceedings from a UK court.

If a person is summoned to appear as a witness in domestic proceedings, there is no obligation for that person to seek legal advice, as Amendment No. 85 suggests, nor is there an automatic right to legal advice regarding his or her rights, as suggested in Amendment No. 91A. It would not be right or consistent to require provision of legal advice in relation to appearing as a witness as part of overseas proceedings when the UK itself does not require or provide that in the domestic criminal context.

Under the Criminal Defence Service Regulations 2001, legal advice may be provided to a person who is a witness in criminal proceedings if he requires advice regarding self-incrimination. However, there is no general provision regarding access to legal advice for persons appearing as a witness in domestic proceedings and the court will not ordinarily inform people of those rights.

With regard to Amendment No. 85, the clause as drafted requires the requesting country to confirm that the witness is willing to give evidence by telephone in

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proceedings before the overseas court, in accordance with Article 11(2) of the MLAC. As an additional safeguard, it requires the court to satisfy itself that the witness is willing. That provides protection to the witness if, having agreed to give evidence, he changes his mind by the time of the hearing. There is no question of issuing a summons to unwilling witnesses, because there is no power to summon witnesses in relation to telephone hearings.

The provision does not have general application. We do not expect it to be used frequently. In any event, not all member states are able to request this type of assistance. We understand that it is mainly used by Scandinavian countries.

In relation to the second amendment, the responsibility is on the court to ensure that the witness is not compelled to give any evidence which he could not be compelled to give in criminal proceedings in the UK. Paragraph 5 of Part 1 of the schedule provides that the court may intervene to safeguard the rights of the witness, so for example if the spouse of a suspect had been summoned to appear as a witness, the court could inform the witness that under domestic law they are not obliged to testify. So the court could play—as one would expect in the United Kingdom context—a more pro-active role.

We consider that the domestic court, which acts mainly as a facilitator in these hearings, will adequately fulfil the function of protecting the rights of the witness without introducing far more rigorous protections that apply to the thousands of witnesses who appear in our courts as part of domestic proceedings.

The noble Lord, Lord Goodhart, raised the question of interpretation. The domestic court could intervene if a matter was not understood as it could view that as a necessary step to take to safeguard the rights of a witness. Translation will have to be audible to the judge. In many cases translation from, say, French to English will be advantageous for a witness. He or she will give evidence in the mother tongue in any event. In those circumstances the judge should be fully aware of all the questions. As the noble Lord rightly avers, the district judge in this instance will intervene if he thinks that it is right to do so.

7 p.m.

Lord Goodhart: Before the noble Baroness responds to those comments, I should say that I am pleasantly surprised by the noble Lord's reply. I had rather assumed that there would be no translation facilities available if a witness was being cross-examined in a foreign language which he understood perfectly well. I am pleased to hear that that is not the case. However, that process certainly involves considerably more time being taken up. As regards the more widely spoken European languages, is it contemplated that a panel of district judges might be sufficiently fluent in those

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languages to be able to sit as judges without having an interpreter present? I cannot see any legal objection to that in so far as this country's laws are concerned.

Lord Bassam of Brighton: It is our expectation that the relevant proceedings would take place in English. Therefore, there would need to be translation.

Lord Goodhart: But the proceedings surely could not take place in English. I refer to the examination of the witness and the witness's replies. If, as I said, a Polish witness was being examined by Polish lawyers, that process could not be undertaken in English. It would have to be translated for the benefit of the judge alone.

Lord Bassam of Brighton: Of course.

Baroness Anelay of St Johns: I am grateful to the noble Lord for that full and helpful response. He correctly identified the fact that I had slipped up by calling the relevant person a defendant rather than a witness. I did so as I was thinking of the need to provide safeguards for witnesses who could conceivably become defendants in the circumstances we are discussing. Witnesses need to be aware of the likely implications of the evidence that they provide. I accept the explanations that the noble Lord has given but on Report we shall want to examine closely what protections might be necessary for witnesses in the circumstances we are discussing. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 31 agreed to.

Schedule 2 [Evidence given by television link or telephone]:


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