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Baroness Blatch: My Lords, the Government share the concern for the welfare of child witnesses which has motivated this group of amendments. When introducing them, my noble friend mentioned our recent meeting to discuss the child witness arrangements and how they might be improved. It was a very helpful meeting and illustrated that there is much more upon which we agree than upon which we differ. The Government accept that there is scope to improve the present arrangements. I outlined a few minutes ago the range of measures which we are taking. We are confident that they will secure practical benefits for children. I have to say that we are not persuaded that the same can be said of the changes proposed in these amendments.
My noble friend has explained that the new clause (Amendment No. 109) provides for pre-trial cross-examination of children to be conducted in informal surroundings and to be video recorded for use at the trial. The aim is to conduct the cross-examination sooner so that the quality of evidence is better, stress is reduced and the child can, if necessary, receive therapy sooner. I think we would probably all agree that if those benefits could be achieved they would be a prize worth having. Unfortunately, we doubt that they can be achieved. Indeed, we are concerned that the result could be more stress for the child, not less. As your Lordships would expect, on an issue as important as this, we have also sought the views of the Lord Chief Justice who shares our concerns.
Although it might be possible to put some questions at an early stage, a proper cross-examination cannot take place until the defence is fully prepared and ready to proceed with the trial. I might say in passing that that is where the delays arise. They are proper delays, because until the defence is properly prepared for the trial it would be inappropriate and unfair to go ahead. That means that in most cases cross-examination could not take place more than a few days earlier than at present. I recognise that the further amendment (Amendment No. 113A) tabled by my noble friend seeks to reduce delays by imposing a time limit within which the pre-trial cross-examination must take place. For the reasons I have just explained, the practical effect would be to impose a time limit within which both sides must be ready, not just for cross-examination, but for the trial to proceed. It is clear, therefore, that pre-trial
We are concerned also that whenever it does take place, pre-trial cross-examination could lead to recall and more stress for the child. It is most unlikely that in a contested case the defendant would guarantee not to seek a recall in any circumstances. The amendments recognise that a recall might be needed and provide that it shall take place out of court and under the same conditions as the original cross-examination. The scope for recalls is a matter upon which we have specifically sought the views of the Lord Chief Justice. He considers that further questions which the defence want to put to the child might easily arise and that, bearing in mind the judge's overriding responsibility to ensure a fair trial, the judge could not reasonably refuse the defence the chance to do so. The result would be not one cross-examination as at present, but two or perhaps even more. The possibility of recall would create uncertainty for the child who might have to appear again at short notice.
I understand the desire that children who are victims of these hideous crimes should receive any therapy they need as soon as possible. But again, pre-trial cross-examination does not appear to provide the answer. It is already possible for therapy to be given in some cases in advance of the trial. But if cross-examination cannot be done much earlier than at present, and if there would still be the possibility of recall, the difficulties of providing therapy in certain cases would still arise under these proposed arrangements.
If we were convinced of the benefits of pre-trial cross-examination, we would have adopted it by now. There are genuine reservations--reservations which I must say are shared by the Lord Chief Justice and his senior colleagues--about the principle of pre-trial cross-examination and its potential effect on the child. Those reservations must be resolved before it would be right to legislate. We will continue to keep the arrangements under review, but we cannot support this new clause.
The new clause (Amendment No. 110) appears to be designed to achieve a similar outcome, but by a different route. Sections 42 and 43 of the 1933 Act were intended to provide a method of getting emergency so-called "sick-bed" evidence by children tested at the bedside and admitted into court. The test that giving evidence in court would involve a serious danger to the child's life or health is a very high one to meet. That may explain why the provisions are hardly ever used. In addition, evidence taken that way is admissible only if the defence has had an opportunity to cross-examine the child. In other words, allowing video recording of evidence taken that way raises all the difficulties about
My noble friend explained how the amendment to provide for questioning by an intermediary would work. It is also important to recognise that the proposal assumes that provision has been made for video recording of pre-trial cross-examination which, as I have explained, the Government cannot support. That apart, it is clear that we are not talking about the use of interpreters who are already used when necessary. Nor would there be any benefit to the child if the intermediary relayed the question in precisely the same style and words. The proposal is that the intermediary should be able to adjust the style and content of the questioning. The danger here is that in doing so, the intermediary could ask questions in a way that is prejudicial to the conduct of the case, and so to the interests of the child, and flies in the face of justice for the defendant. Questions could be misunderstood or may lose their purpose and the value of spontaneous dialogue could be lost.
Those are reservations which were recognised by the Pigot Committee when the proposal was first made. They are concerns which the Lord Chief Justice shares. There are ways in which the present arrangements might be improved to try to ensure that so far as possible questioning of children reflects their particular needs and abilities. We are considering what more can be done to encourage best practice.
The Government accept that the wishes of the child should be taken into account in deciding whether to make use of the facilities to give evidence by live TV link or video recording. That is already the firm policy of the Crown Prosecution Service. It may sometimes not be possible to obtain the child's views before, as this amendment requires, an application to the court is made. The difficulty with statutory requirements of this kind is that they cannot always cater for the variety of cases which arise in practice. Where, as in this case, the objective can as well, and more flexibly, be achieved without legislation, we believe that that is the right course. We shall, as part of our further work to improve the existing arrangements, be seeking ways to ensure that the wishes of the child are so far as possible taken into account at all stages.
I am sorry to have spoken at such length, but it is important that the arguments for and against these amendments should be properly understood. We all have the same objective--making it easier for children to give their evidence with the minimum of distress. The Government are determined to implement changes which fulfil that objective. In addition to provision for binding rulings, there are a number of practical steps which we are taking to improve the present arrangements--measures which aim to increase the use
My noble friend posed a particular question. She asked whether I would respond positively to a request to meet an inter-disciplinary team. That is a useful suggestion and I would be prepared to meet such a team. I should like us to focus our attention on the ways in which the arrangements are working now and to consider proposals that the Government have put in hand and see how they will work while at the same time discussing other issues. I believe that it would be difficult to achieve fruitful conclusions between now and Third Reading. However, I have no argument at all in relation to the suggestion made by my noble friend.
I believe that monitoring should continue and that we should continue to do what can be done which is both compatible with justice to the defendant and addresses the pressures and stresses created for child witnesses.
Baroness Faithfull: My Lords, I thank the Minister for that very full explanation which we are very grateful to have. However, I am disappointed. We are working in a democracy and it seems to me that we are not listening to the people who do the work; namely, social services workers, voluntary organisations, many, although not all, of the circuit judges and many, although not all, of the QCs and other members of the Bar. We must listen to the people who do the work and who have had experience of the provisions over the past five years. I realise that the noble Baroness has made some very valuable proposals which may improve matters, but I believe that they will not meet the anxieties which have been expressed this evening.
I wish to consider this matter between now and Third Reading. I wish there to be an inter-disciplinary meeting, which I believe could be arranged. On that basis, I hope that other noble Lords whose names are to the amendment will allow me to withdraw it this evening.