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Lord Thomas of Gresford moved Amendment No. 153A:


The noble Lord said: The problem that arises under Clause 109 is the extension of the concept of fear as a reason for a witness not giving evidence in court to fear of "financial loss". We are well used to situations in which evidence is brought before the court—before the judge in the absence of the jury, or before the magistrates—of a witness who is too afraid to come to court. Usually, it is obvious from the nature of the proceedings why that fear has arisen—perhaps it is a rape case, or the witness has been attacked or there is evidence of threats having been issued against a particular witness.

However, were a person saying, "I'm not coming to court to give evidence orally because I'm afraid of losing money", to be the basis for the statement to be admitted takes the matter too far. I refer your Lordships to subsection (3) which says:


    "For the purposes of subsection (2)(e) 'fear' is to be widely construed and . . . includes fear of the death or injury of another person or of financial loss".

That is unacceptable. Fear of financial loss ought not to be a proper reason for reading the statements of witnesses as opposed to having them give evidence orally and it is in those circumstances we have lodged these amendments. First, we wish to ensure that steps have reasonably been taken to address the fear before that can be the basis of an application to read a statement. Secondly, we wish to leave out that enormous widening of the concept of fear and, finally, we wish to insert that,


    "in appropriate cases, leave may be given . . . having regard to the fact that",

a special measures direction could be made in relation to the relevant person. Increasingly, screens are creeping into courts. They are obviously good where there is a vulnerable witness. However, very often, in certain circumstances, they appear to be taken advantage of. Not long ago, screens were required in the case of an alleged murder some 30 years previously. One would have thought that the witness's fear was of giving evidence—it is never a pleasant thing to do anyway—and not of any consequences to himself. I beg to move.

Baroness Scotland of Asthal: The purpose of Clause 109 is to provide for the use in evidence of a witness's out-of-court statement, with the leave of the court, where that witness is too frightened to testify, or to continue testifying. The important element is the leave of the court. The court will have an opportunity to

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determine whether the reasons put forward by, and on behalf of, the party who seeks such leave are found to be capable of falling within the type of reason that would deny the court the advantage and privilege of having live evidence before it.

Leave can be given only in circumstances where to do so is in the interests of justice. It replaces existing powers to admit statements of frightened witnesses under the Criminal Justice Act 1988. This provision plays an important part in ensuring that the evidence of frightened witnesses can be heard by the court, where appropriate.

The list outlining the species of issues capable of causing fear, to which the noble Lord referred, are simply examples rather than an exhaustive list. Any of those issues would be subject to the court applying the interests of justice test.

Amendment No. 153A proposes that leave can be granted to admit a statement of a frightened witness only where such steps as may reasonably be taken to address the fear have been taken. We understand why the noble Lord should raise that as a concern, but witnesses in such positions are now increasingly concerned by a wide variety of issues.

The noble Lord, Lord Thomas of Gresford, mentioned the use of screens. He knows that they are often used for vulnerable children, rape victims and others who have been genuinely terrified and would find it almost intolerable to be in the same room as the alleged assailant. In an effort to make witnesses feel more confident, we have also taken advantage of the use of video-link facilities and other opportunities. Those issues will be in the court's mind when deciding whether the interests of justice are served by an agreement that evidence can be led as opposed to taking advantage of all the other opportunities, such as screens, video-link evidence or otherwise, in determining the application.

We recognise that the problem of reluctant witnesses is serious, and that much more needs to be done to ensure that courts receive the best possible evidence. As the noble Lord knows, there is a difference between a witness who is reluctant and one who is genuinely fearful. As part of our wider programme to improve the treatment of vulnerable and intimidated witnesses, we are piloting new witness care arrangements in eight areas: West Mercia, Warwickshire, London, South Yorkshire, Essex, Gwent, North Wales—I am sure that that will give the noble Lord, Lord Carlile, a modicum of pleasure—and the West Midlands. That will result in much earlier and more accurate identification of witnesses who may be subject to intimidation, or who feel that they may be at risk.

Lord Carlile of Berriew: I am grateful to the noble Baroness. It gives me much pleasure to hear mention of North Wales. I understand that the Question whether Clause 109 stand part is in this group. In that respect, I ask: what do the words,


    "is to be widely construed",

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add to the clause? Is there a statutory precedent for the use of those words or are the Government trying to introduce an amended canon for judicial construction of the clause?

Baroness Scotland of Asthal: One of the difficulties about the issue of fear, as the noble Lord will know, is that there are many witnesses who will experience genuine fear, but the cause of that fear may differ. The court has to identify whether the fear is real, whether it is pertinent, or whether it would prevent the person from appearing, as opposed to necessarily being restrictive about the source from which that fear would spring. I cannot tell Members of the Committee whether this phraseology has been used in other legislation—not least, because I have had about one and a half hours' sleep. Currently, I cannot bring any to mind, but I can certainly write to the noble Lord about this issue if I find any such example.

I hope that I have been able to reassure noble Lords. All the pilots about which I spoke are exploring a one-stop approach, with better communication and information, better risk management and better individual case management of witnesses who may need additional support to get to court and to give best evidence. In relation to that, too, I shall be happy to write to the noble Lords, Lord Thomas of Gresford and Lord Carlile, if further information is sought.

Notwithstanding that we shall continue to do all we can to support witnesses so that they feel able to give live evidence, we also understand that there is a real issue for those who are fearful, whether by intimidation or any other reason, and are unable to do so. We want the evidence to be available to the court if it believes that, in the interests of justice, it is necessary to admit it in this way.

Clause 109 does not attempt to provide an exhaustive definition of what may constitute a sufficient basis of fear. Instead, as the noble Lord, Lord Carlile, said, Clause 109(3) states that fear should be interpreted widely. That is the reason. It is drafted in the terms used in the Law Commission's draft Bill and seeks to achieve a compromise between, on the one hand, the difficulty of setting in legislation a comprehensive list of the circumstances in which fear justifies the reception of a hearsay statement and, on the other hand, the danger that in the absence of any definition, a court might hold that a particular kind of fear is not what Parliament meant.

Amendment No. 153B seeks to remove this interpretation, which we do not think is helpful. We believe that it is a helpful guide to the courts as to what may be considered as constituting a "fear" for the purpose of this provision. If the reference was removed, it would mean that the courts might consider that fear of injury to others or financial loss was not what was intended to be covered by Parliament under the scope of fear. That would be undesirable. It is really for the courts to determine whether the quality of fear experienced by the witness is such as to make the interests of justice weigh in favour of allowing this

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evidence in written form, as opposed to permitting it in a live form. Therefore, the ambit of this clause enables the interests of justice to be better served.

4.30 p.m.

Lord Mackay of Clashfern: May I ask the noble Baroness whether the phraseology used in this clause implies that a "fear of financial loss" might be a reasonable justification for not coming to court to give evidence?

Baroness Scotland of Asthal: This is a question of quantum and nature. One would have to balance the fear of financial loss against the interests of justice. If, for example, someone said, "I don't want to come to court because I shall lose an hour or two's worth of extra money", that is one thing. However, if the witness is out of the jurisdiction and would lose all forms of gainful employment because he happened to operate in a narrow sphere, and if he were able to convince all concerned that his work was something that he would be incapable of replacing and would be bound to bring about a form of nervous psychosis, that is quite another matter.

We have a very broad spectrum. It is for the court to exercise good sense and judgment and to consider whether the reasons given by the witness are such that it believes that the interests of justice demand that the evidence should properly be admitted. I know that from his long experience, not least as a former Lord Chancellor, the noble and learned Lord will know how carefully and jealously the judges of England and Wales and, I dare say, Scotland as well, will guard the necessity for the interests of justice to be preserved. We think that the phrase gives them the flexibility to so determine. It has been included simply so that it is not a species which is automatically excluded from the court's consideration. Whether it is persuasive will depend on the facts of the case.


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