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Baroness Anelay of St Johns moved Amendment No. 86:



"The nominated court must be notified that the witness is willingly giving evidence by television link."

The noble Baroness said: In moving Amendment No. 86, I wish to speak also to Amendments Nos. 87, 88, 89, 91 and 92. These amendments are also concerned with protection for witnesses who give evidence by television link or telephone.

Amendment No. 86 simply imposes a requirement that the court that is nominated should be told that the witness is willingly giving evidence by television link. The anticipation is that if that assurance is not given the proceedings would not go ahead. Is that the case?

Some protection is given to the witness in paragraph 5, to which the noble Lord, Lord Goodhart, referred when speaking to Amendment No. 91A. That paragraph states that the nominated court may intervene where it considers it necessary to do so to safeguard the rights of the witness. We seek the Government's view on how far the court should have a role in safeguarding those rights. Amendment No. 87 would remove the discretion of the court to act in these circumstances and would require it to intervene. It is a tool for intervention.

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Paragraph 7 provides that the evidence will be taken in accordance with the laws of the country which has requested that television evidence should be given, but it also provides that the evidence will be subject to any measures the Secretary of State has agreed with the overseas country to protect the witness. Amendments Nos. 88 and 89 probe what approach will generally be taken by the Secretary of State in protecting witnesses.

Amendment No. 91 probes another aspect of the protection which should be afforded to witnesses by providing that the witness could not be forced to give evidence which he could not be compelled to give in criminal proceedings in the overseas country concerned.

Amendment No. 92 extends protection to witnesses giving evidence by telephone by requiring the court to intervene where it thinks it is necessary in order to protect the rights of the witness. I beg to move.

Lord Bassam of Brighton: As the noble Baroness said, Amendment No. 86 seeks to restrict the power of the court to secure the attendance of witnesses to circumstances where the witness is willing to attend. That is unacceptable for the reasons I gave in relation to the second amendment to Clause 30. The UK cannot restrict the application of these provisions to circumstances where witnesses are willing to give evidence because Article 10 of MLAC applies to all witnesses, not only willing ones. We consider that it is appropriate to have the power to compel witnesses to attend and that will be achieved by issuing a summons, as would be done if they were required to appear as a witness in a domestic criminal proceeding.

The noble Baroness explained that Amendment No. 87 is a tool for intervention. It seeks to replace a discretionary power of the court to intervene to protect the rights of the witness with an obligation to do so. While the Government understand the sentiment behind the amendment, we consider it unnecessary. As drafted, the court is granted a discretionary power to intervene, enabling it to do so if necessary. We have confidence that our courts will use that discretion. That seems entirely sufficient for the purposes of protecting witnesses.

The Government consider that Amendments Nos. 88 and 89 are inappropriately worded. Amending


    "any measures for the protection of the witness"

to


    "those measures for the protection of the witness"

could imply that such measures would be agreed in all cases. In practice it is unlikely to be necessary to arrange for protection of witnesses in all cases. We therefore consider the current drafting to be appropriate as it does not presuppose that such measures are always necessary.

Amendment No. 89 would require the Secretary of State to be satisfied that the overseas authority has the specified function. That seems to reflect an earlier proposed amendment to Clause 7, which we opposed on the basis that it would introduce an unacceptably high test for the domestic authority to meet. In the

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context of Schedule 2, the Government consider that the current drafting has all the advantages of what we describe as "linguistic consistency" with that clause.

Amendment No. 92 would replicate the provisions of Part 1 of Schedule 2 regarding the intervention of the court to safeguard the rights of the witness, as set out in Part 2. Again, we do not consider it necessary or appropriate to include that provision. We also believe that it could have a confusing effect.

Under Clause 30 and Part 1 of the schedule, which govern television links, witnesses may be required to attend and are compellable, subject to the privileges in paragraph 9 of Part 1, which we have already discussed.

Finally, I turn to Amendment No. 91. The Government appreciate that the intention of the amendment is to protect witnesses from testifying where they would not be obliged to do so under the law of the requesting country. However, we consider that unnecessary and impractical. Again, it would place a high burden on our domestic courts if they had to examine the law of the requesting country in coming to that view. The right of a witness not to testify if he could not be compelled to do so under the law of the requesting country exists under that country's law. The domestic court involved in the hearing will not know all the details of the requesting country's legal system, nor the circumstances when witnesses could not be compelled to give evidence. We do not believe that it should be expected to do so.

I hope that those explanations satisfy the noble Baroness. If they do not, clearly we shall be able to pursue these matters further.

Baroness Anelay of St Johns: I am grateful to the noble Lord. As I said during debate on the previous group of amendments, I believe that on Report we shall need to return to issues concerning the protection of witnesses. I certainly appreciate some of the Minister's comments with regard to Amendments Nos. 88 and 89, and I doubt whether I shall wish to proceed with those.

I was intrigued with the Minister's response to Amendment No. 87. He commented that the amendment was perhaps unnecessary because we have confidence in our own courts to exercise a discretion in the right way. Indeed, like the noble Lord, I do have confidence in our courts. I believe that the difficulty is that they need to know when they should exercise a discretion. They are going into some fairly uncharted territory here.

Earlier, the noble Lord, Lord Goodhart, raised issues relating to the translation of proceedings. We may need to discuss that matter later but, at this stage, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 87, 88 and 89 not moved.]

Baroness Anelay of St Johns moved Amendment No. 90:


    Page 64, line 8, at end insert "including those competent in sign language"

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The noble Baroness said: In rising to move Amendment No. 90 and speak to Amendment No. 93, I am aware that it is an interesting fact that, as a result of the changes in procedures in both this House and another place, the Grand Committee sits for quite some time after the main Chambers have adjourned. However, be that as it may.

I tabled these amendments simply in order to obtain an assurance from the Minister that the Government will have regard to the needs of witnesses who are deaf or hard of hearing. The Minister will be aware that a substantial number of people in this country—somewhere between 7 million and 8 million—have hearing difficulties. One would assume that the proportion must be the same in other countries, too.

As we have already discussed in debate on other amendments, the rules in Schedule 2 that cover the giving of evidence by telephone and television link refer to interpreters. My amendment simply asks the Government whether interpreters will include those who are competent in sign language or, indeed, in other forms of communication. It is obvious that that would be of benefit to those giving evidence by television. One would also need to know what measures were in place to assist those giving evidence by telephone. I beg to move.

Lord Bassam of Brighton: I can be brief in responding on this matter. The term "interpreters", as it currently stands, is drafted in general terms and would include those competent in sign language. The provision is included to meet the requirement of Article 10 of the MLAC. In practice, domestic courts would always provide interpretation in the event of a

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witness not understanding the language in which the proceedings were being conducted because the interests of justice would not be served without interpretation.

Therefore, sign language applies as well as verbal interpretation. Under the terms of Schedule 2, the rules of court must already make provision for the use of interpreters. We see no reason why the term "interpreters" should not include those competent in sign language. As I have always understood, signing must be a language all of its own and therefore I see no problem with that. However, we are grateful for the opportunity to clarify the situation. I believe that that will probably have been the last word from either of our two Houses this evening.

Baroness Anelay of St Johns: I can be even briefer in welcoming that excellent response, which I shall transmit to the British Deaf Association and the Royal National Institute for Deaf People. They will be as delighted as I am. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 91 to 93 not moved.]

Schedule 2 agreed to.


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