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Baroness Blatch: My Lords, I am grateful to the noble Lord for taking me so carefully through that explanation. As he is aware, I only had sight of the amendments a few moments ago. We all recognise that this is a complicated matter and there is no point of principle at issue between us. The amendments are defective. But other than making that technical point, I make no other comment in that regard. I want to respond to the points being made by the noble Lord.
It may be helpful if I say a few words as regards the provisions in paragraph 1 of the new schedule introduced in Amendment No. 90 dealing with the admissibility of written statements at a trial. Put simply, the aim is to facilitate the conduct of the trial by allowing for written statements to be admitted at the trial in place of oral evidence where all parties agree. If the evidence contained in a specific statement has been admitted in earlier committal hearings and is not disputed by any parties at the trial, it would be both unnecessary and wasteful to require the presence of witnesses to give that evidence again orally. That is a practice which already exists and we are not seeking to introduce anything new or revolutionary in the current provision.
The noble Lord, Lord Williams of Mostyn, made light of the limitation which exists in relation to the "interests of justice", to which I shall turn in a moment. He described it as a "bald" discretion. There must be an opportunity for a party to object and for the witness to be called. But that is provided for by paragraph 1(3)(c). In such circumstances the provision makes clear that the witness will be called to give evidence orally unless the trial judge decides that it would not be in the interests of justice to allow that to happen. However, the court would have to be satisfied that it was in the interests of justice.
It is not a new test. It is the test that the court must apply in looking at questions of admissibility. Under the provisions of the Criminal Justice Acts 1925 and 1988 we are not seeking to change the way in which that test is interpreted. The fact that the provision does not elaborate on that phrase does not mean that the test is in any way different. It must also be right to allow that element of discretion since there may be circumstances in which it would be impossible to ensure a witness's attendance. For example, if, since making the original written statement, the witness had died or moved abroad and was unable to be contacted, it would be wrong for one party to be able to preclude such evidence merely by objecting. The judge must be able to say whether or not, in the interests of justice, such evidence should be admitted.
I believe the anxiety over the way in which the provision will work in practice is misplaced. We are not seeking to introduce any fundamental changes to the interests of justice test and do not believe that the provision does so. Of course, we shall monitor that
The only final point I want to add is that the interests of justice test--we see it as a limitation but it is an important point to make--is appealable. If the power is exercised wrongly by the courts or in a way that concerns the defence, the decision can be appealed against. Therefore, recognising the point being made by the noble Lord, I hope with that explanation he will feel able to accept the government amendments and not press his own.
Lord Williams of Mostyn: My Lords, with the leave of the House perhaps I can deal with this matter. I am grateful for the tone of the Minister's response. I am familiar with the present practice that, where all parties agree, a statement can be read and juries are directed that they must treat the evidence which is read in exactly the same way as though the witness had attended to give evidence orally.
The interests of justice is a broad concept and one simply looks for some headings by which a trial judge may be guided. It is true that the wrongful admission of evidence can be appealed against, and the appeal may be successful. But, bearing in mind the present state of the criminal listings in the Court of Appeal, Criminal Division, that is of little benefit to a defendant who may have been wrongly convicted and who has had to wait nine or 12 months before his appeal is heard. Surely it is better to get things right rather than to wait for appeal after they have gone wrong.
I am grateful that the Minister was able to say unequivocally that the present safeguards are intended to subsist and continue; that is, the safeguards already spoken about and in particular those found in Sections 25 and 26 of the Criminal Justice Act 1988. I indicated that where a witness is dead or unavailable there may be legitimate reasons to have the statement read. But the fundamental principle remains, and it is important: the presumption should be that a witness ought to attend for cross-examination so that the defendant may confront his accuser. I repeat that there remains doubt about this matter and I invite the Minister to consider that if there is a lingering doubt--to use a phrase from another context--it ought to be reconsidered more fully in another place.
Lord Simon of Glaisdale: My Lords, I am not entitled to intervene at this stage, but I merely rise to inquire as to the present procedural position. I understood the noble Lord, Lord McIntosh, to say that the noble Lord, Lord Williams, had tabled two manuscript amendments which he would not move but to which he was speaking. I gather that the view was that those amendments were unavailable at this stage to enable them to be moved. However, I thought that with the Commons amendments that we are considering, a manuscript amendment was in order. In any event, the noble Lord, Lord Williams, has spoken after the Minister as though he had a substantial amendment tabled.
Lord McIntosh of Haringey: My Lords, with the leave of the House, perhaps I can respond and say that I am afraid the noble and learned Lord has, to some extent, misunderstood. The Minister moved Amendment No. 1 and spoke to a group of amendments, including Amendment No. 90. We could not move manuscript amendments--a copy of which the noble and learned Lord now has--to Amendment No. 90 but, as Amendment No. 90 had been spoken to by the Minister, it was felt proper that we should speak to them now. The Minister will have a right of reply to the debate on Amendment No. 1, which is the only Motion now before the House.
My noble friend was seeking some indication from the Minister that even if there is the merest scintilla of doubt in the Government's mind about the validity of the point being made in the manuscript amendments, it would be for the benefit of Parliament if the Minister were to accept those amendments, acknowledging that they are defective and that the outcome may not be the same, in order that the matter can be discussed between the Home Office and the Criminal Law Bar Association and resolved before such amendments go back to the Commons.
We make no party political point about this at all. All we are saying is that if these amendments are not accepted, there is no possibility of further parliamentary consideration of this rather technical issue. I appeal to the Minister now to indicate that for the purposes only of further discussion and without commitment to the outcome, she is prepared to accept even one of the manuscript amendments.
Baroness Blatch: My Lords, I do not want to give the commitment that we shall accept these amendments today. Interestingly, when I was preparing for today, without the additional six amendments to Amendment No. 90, I had anticipated that there might be some concern about the issue and that it might be brought to our notice.
There are two matters. I have given a commitment to monitor this matter. The other is that in practice we have the test of "in the interests of justice" being applied, but we do not have sufficient concern about it to accept that it is going to be a problem area. The noble Lord, Lord Williams of Mostyn, is worried about its application. That is important. The noble Lord drew on the Criminal Justice Act 1988, and I shall say a word on that. It is well established that the courts at present enjoy a discretion to exclude evidence admissible under Section 13(3) of the Criminal Justice Act 1925. In deciding whether to admit such evidence, case law has held that the courts should apply the "interests of justice" test laid down in Section 26 of the Criminal Justice Act 1988, which I believe is the part referred to by the noble Lord.
It is anticipated that under the new arrangements the courts will, as now, turn for guidance to Section 26 of the 1988 Act for assistance in applying the provisions in the new schedule to the Bill. We believe that with that body of case law and the continuing habit of referring back for guidance as to how this measure will apply in practice, that is sufficient. Therefore, I argue that the amendments I have pressed on the House today should be accepted and the manuscript amendments rejected.
Lord McIntosh of Haringey: My Lords, again with the leave of the House and before the Minister sits down and the Question on Amendment No.1 is put, perhaps I may make one last appeal. If the Minister rejects the amendments to Amendment No. 90, the issue is dead and the Bill becomes law this afternoon. There is no possibility of rethinking of any kind. For the sake of a few days' delay in obtaining Royal Assent, can she not consider the matter further? We shall make no political point about it. Whatever conclusion is come to, there will be no delay and we will let the measure pass on the nod. On this occasion can she consider the possibility of letting one of these amendments go through so that the matter can be considered again with those who are very concerned in the Criminal Bar Association? They may be wrong. I am not saying they are right. But at least their views can be heard. They are very late in putting them forward and culpable in that respect. However, there should be an opportunity just to consider the matter.
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