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Viscount Bridgeman moved Amendment No. 132F:


The noble Viscount said: The amendment relates to Clause 52, which allows magistrates' courts to sit at other locations when the court feels it appropriate to

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receive evidence through a live link and such a facility is not available at any petty sessional courthouse. It is a very simple amendment which would allow both the prosecution and the defence to make representations to the court about the issue of sitting at another location.

The Bill allows the court to sit elsewhere for the whole or part of the proceedings at a place which could even be outside the petty sessional area. This may mean a large burden on either party with regard to travelling, time and expense. It would seem fairer in the interests of justice to allow the court to hear what such a move would mean to all those involved in proceedings so as to avoid issues of fairness arising later. I beg to move.

Lord Renton: I support my noble friend's amendment. We are here dealing with what the magistrates' court may do. When giving powers to magistrates' courts, I always feel it is necessary to be very specific about such powers. The words,


    "after hearing and taking into account any representations made by the prosecution or defence",

add to the purpose of the subsection. It is a simple, non-controversial amendment, which I hope the Government will accept.

Lord Hylton: When the Minister replies, will she give the Committee some idea of the number of magistrates' courts where it will be difficult to install live links at the present time? Does she agree that this could have an important bearing on cases involving children and other family matters?

Baroness Scotland of Asthal: I do not know whether I will be able to give the noble Lord the precise details he wants. I am making inquiries because if I can tell him before I sit down I will be happy to do so. However, if I may, I will give a generic answer.

The purpose of the power to sit in other locations is to enable the facilities that exist for evidence to be heard by live link to be fully utilised. It is very practical. When the court is deciding whether evidence should be heard by live link, the parties of the case will be able to put their arguments on this matter to the court. Once a decision to hear evidence by the live link has been made, it would normally be a decision for the court alone as to where it is best for the court to sit to hear this evidence.

The suggestion would be that the live link would be appropriate; the parties would then be heard regarding that issue. The judge or magistrate would then decide that it was appropriate to use live links. Then it is a practical issue of finding the nearest court that has those facilities which is reasonably proximate and convenient. It will be a totally practical matter; it may be very desirable to have it in a court next door, but the court next door may simply not have the necessary machinery.

We would like to have these facilities in all our courts. There is a roll-out taking place—we have a greater number now. I am not at this moment able to

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give the noble Lord the sort of answer that he wants about numbers, although I may be in one second. Actually, it might be simpler if I just write to the noble Lord.

We do not have a comprehensive programme; we are rolling it out. We would like to reach the stage where all appropriate courts have appropriate facilities. I agree with the noble Lord, Lord Hylton, that, given the sensitivity surrounding cases involving children, we have to have the most appropriate place. That will obviously be taken into account when submissions are made as to whether the live link is appropriate and how it should be dealt with.

Lord Hylton: Would the Minister be kind enough to place a copy in the Library?

Baroness Scotland of Asthal: I would be more than happy to do that.

This is the only import of this provision—it is purely practical and I am sure that if defence counsel and prosecuting counsel can come up with some more machinery very close by, the court will avail itself of that opportunity.

Viscount Bridgeman: For clarification, does the Minister regard it as implicit in the Bill as it stands that representations by the prosecution or defence will be taken into consideration by the court?

Baroness Scotland of Asthal: I should think it is, but when they are considering whether the live link is appropriate to be used, there might at that stage be discussion about where to do it, how it will be done, who will be there and whether there will be an interpreter. All those matters will be taken account by the judge or magistrate in making the decision that live link is either appropriate or inappropriate. Once they have decided that it is appropriate and they have heard the submissions, the most practical location nearest to the court which is convenient to everyone is likely to be chosen. It is not likely that there will be any need for further submissions on that.

Viscount Bridgeman: I am most grateful to my noble friend Lord Renton who, with his great experience, has supported the amendment. However, I hear the Minister's explanation, and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 52 agreed to.

Clause 53 [Warning to jury]:

Viscount Bridgeman moved Amendment No. 132G:


    Page 37, line 21, leave out subsection (2).

The noble Viscount said: In speaking to Amendment No. 132G, I shall also speak to Amendment No. 132H. Both amendments seek to probe the provisions of Clause 53, which states in subsection (2) that where,


    "evidence has been given through a live link",

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the judge,


    "may give the jury . . . such direction as he thinks necessary to ensure that the jury gives the same weight to the evidence as if it had been given by the witness in the courtroom or other place where the proceedings are held".

While we recognise that the subsection gives the judge some discretion by using the word "may" rather than "must", we still feel that it fetters judicial discretion with regard to the weight that should be given to live-link evidence. We recognise the need for giving evidence by live link, and can see its benefits. However, there is a qualitative difference between evidence given in a courtroom, with the immediacy of the response and the atmosphere, and evidence given in separate accommodation. There will, for example, be differences in the body language, which will influence the jury's assessment of the credibility of the witness. The judge must retain a discretion to direct the jury as to what weight they may give to such evidence. It is difficult to assess accurately the demeanour of a witness over a live link.

It is a fact that technology varies from one courthouse to another. Do the Government accept that that is something that should be taken into account? What are the Government's plans to ensure that a uniform high quality of live link is available in all Crown and magistrates' courts?

Amendment No. 132H is a qualified amendment to Amendment No. 132G. I offer it as something of a compromise position. It would ensure that judges, in exercising their limited discretion in subsection (2), would be properly informed and would follow guidelines as set out by the Judicial Studies Board. We do not know how much evidence via a live link will be used in practice; it may be something that a judge comes across frequently, or rarely. A model direction from the JSB would be welcome. Such a model direction should also have the positive effect of preventing unnecessary appeals. I beg to move.

Lord Renton: The amendment moved by my noble friend would leave out subsection (2). It is really a sort of probing amendment, as we could not do without subsection (2)—or something like it in any event—within the clause. However, he has made some points that are really rather necessary to ensure that the warning given to the jury is of the character that it should be and as precise as it should be.

It may be a matter of opinion, but the words,


    "and in accordance with any model direction issued by the Judicial Studies Board",

may, alas, be somewhat hypothetical. However, in the important matter of giving warning to juries, we must be as precise as we possibly can in laying down the rules.

I know from my rather long experience that that sort of thing was normally put forward not in statute but in rules of court. One of the several reasons why the Bill runs to such a vast number of pages—something like 347 pages—is because it gets Parliament to give directions that are normally given by the High Court to

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the judges under rules of court. If we are doing that, we must be as good and precise as the rules of court were. My noble friend has raised points that, in those circumstances, need to be considered by the Government.

Baroness Scotland of Asthal: We have considered them, and I hope that I shall be able to give an explanation to the noble Lord, Lord Renton, and the noble Viscount, Lord Bridgeman, which will hopefully make them feel a little more comfortable.

I am aware that evidence given over a live link may not have the same impact as that given in person in open court. I give the Chamber some reassurance on this matter, as there is a developing body of research that suggests that evidence given in that way does not significantly reduce the effectiveness of the witness's evidence. I should be very happy to write to noble Lords to set out the background of that in more detail if noble Lords would find that helpful. Before I am invited to do so by the noble Lord, Lord Hylton, I should also say that I am happy to place a copy of that in the Library.

When live links are used the fact finders will still be able to see and hear the witness, adjudge his or her demeanour and come to a conclusion about what weight they should place on the witness's evidence. However, in developing these proposals we do not wish to be thought dismissive of these important concerns. There will be issues on which we want to improve if and when we properly can. Thus, in deciding whether to give a direction to use a live link, the court must consider the circumstances of the case including, as I said earlier, whether that would inhibit the testing of the witness's evidence. So if in the particular circumstance the court decides that live evidence is required in order to give those hearing the case a full flavour, that is what should happen.

I can give some examples from research. In 1991, Davies and Noon looked at cases involving child witnesses—an issue about which I know the noble Lord, Lord Hylton, is particularly concerned. They found no significant differences in observer ratings of the effectiveness or the credibility of the testimony and concluded that using links facilitates the giving of evidence by children, who were happier, more fluent and less likely to give inconsistent testimony. So the research we have so far tends to indicate that it is a good thing.

Clause 53 provides that the judge may give such direction as he thinks necessary to ensure that the jury gives the same weight to evidence which has been given through a live link. Amendment No. 132G would in effect remove the effect of this clause. I very much agree with the noble Lord, Lord Renton, that this is a probing amendment. The effect of the amendment as currently phrased would be that there was no statutory guidance about the weight to be placed on evidence given through a live link. That may result in a little confusion about the status of such evidence and whether it should be accompanied with a warning as to how the evidence is used. That would clearly be

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unsatisfactory as there is no reason why evidence given through a live link may not be accorded the same weight as evidence given in court.

The clause does not oblige the court to give any direction; the judge will do so only if he or she considers it necessary. The judge may decide because of the way in which the trial has proceeded that it might be helpful to reiterate or re-emphasise that the evidence should be treated absolutely the same. However, the clause is a useful guide as to the weight that should be accorded to evidence over live link.

I understand that Amendment No. 132H, also tabled by the noble Viscount, Lord Bridgeman, proposes that directions under Clause 53 should be made in accordance with any specimen direction given by the Judicial Studies Board. As we know, the Judicial Studies Board is an independent non-statutory body. As it has no legal identity, it is not desirable to refer to it in legislation. I see the noble Viscount nodding. Furthermore, it may be that the Judicial Studies Board may not consider it appropriate to give a model direction in this area. The bench book of the Judicial Studies Board's directions does not currently contain any model direction concerning the weight to be attached to evidence given over a live link. The desirability of producing such a direction will be considered by the criminal committee of the JSB once Parliament has completed its consideration of the Bill. If no direction were issued, the amendment would be redundant and could cause confusion.

In any event, the model directions contained in the JSB Criminal Bench Book do not have any independent legal status. As the foreword to the bench book makes clear, the directions are not intended to lay down or develop any principles of criminal law, but merely to reflect the law as it stands. Noble Lords know that it will be updated very regularly as the jurisprudence changes.

As the noble Lord, Lord Renton, rightly said, legal principles are decided by the Superior Courts and the JSB directions become authoritative only when and to the extent that they have been expressly approved or adopted. In view of that, it would not be appropriate for any individual direction to be given an authoritative status in legislation in advance of its production and consideration by the appellate courts.

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I understand that the noble Lord is anxious to know how guidance will be used. However, the vehicle we are discussing would not be appropriate or effective.


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