Standing Committee E
Thursday 17 June 1999
[Mr. George Stevenson in the Chair]
1.30 pm
Clause 16
Witnesses eligible for assistance on grounds of age or incapacity
Question proposed, That the clause stand part of the Bill.
Mr. John Greenway (Ryedale): With your permission, Mr. Stevenson, I should like to outline our approach to the remaining part of the Bill. Before I do, I should explain, for the benefit of the Committee, that on Tuesday afternoon, my hon. Friend the Member for Hertsmere (Mr. Clappison) was moved from his home affairs brief to education. Although he still appears as a member of the Committee, it is unlikely—barring my own incapacity—that he will attend any more sittings. My hon. Friend had been researching the issues relating to part II, but it now falls to me to deal with them.
That provides the Committee with both advantages and disadvantages. The disadvantage is that Labour Members will see me waving my spectacles around for three or four more mornings and afternoons—I mean in aggregate—and will have to hear me whining on. The advantage is that my hon. Friend the Member for Hertsmere is a barrister and I am not. With respect to this part of the Bill, it is open to debate whether that is an advantage or a disadvantage. It may be a disadvantage in terms of my not entirely understanding what is written in the Bill and my failing to have the same detailed knowledge of other relevant aspects of the law. I say in a friendly spirit to the Minister of State that if I commit a clear breach of what is usual in the proceedings and appear to have a memory lapse. I hope that he and the Committee will be tolerant.
The Bill essentially amounts to two Bills in one. We have thus far dealt with the youth justice element; we now come on to the criminal evidence element. I suspect that no one would disagree that the clauses that we shall debate this afternoon and in next week's sittings are highly important and that the issues that they pose are different from what we have debated so far—children and young people as offenders.
In the second part of the Bill, the young people with whom we will be concerned are more likely to be victims, not just of petty offences, but of the most serious offences in our criminal law—rape, murder, serious assault and abuse of children. Children as victims and witnesses of such horrific crimes will be our main concern in the first clauses in part II. I have not had much time to study the matter, but it is important to try to ensure that such significant changes to the law are properly drafted. The Bill should mean what it says, and say what it is intended to express.
Above all, we must get a better deal for children and vulnerable people who are witnesses, and for rape victims—that is the crux of clause 16. However, we must achieve that in a way that does not undermine the defendant's right or ability properly to defend himself or to be defended. We must ensure that we achieve a proper balance and that we enhance and protect the interests of justice.
Opposition members support the thrust of the Government's measures. That was clear on Second Reading. However, we have queries and anxieties. Differences of view, which are not along party lines, have also arisen. That became clear from discussions with colleagues who practise law and have views on the Bill. The differences will become more apparent later, when we consider the amendments in detail.
I suspect that all members of the Committee have independent views. As I am not a lawyer, I am perhaps less inclined to take up the cudgels on behalf of defendants that some of my right hon. and hon. Friends who are practising barristers-at-law. We need to redress the balance, especially in rape cases. With reference to clause 16 and chapter I of part II, we need to redress the balance in favour of children and vulnerable witnesses who are required to give evidence in court on serious matters such as those that I mentioned.
By way of a little history, the measure introduces further changes to those that the Criminal Justice Act 1991 made. As I said earlier, I was a member of the Committee that considered that measure. Those changes followed the Pigot report—the report of the advisory group on video evidence. Its recommendations have stood the test of time. However, I acknowledge that some of its key recommendations, especially those on children and witnesses with disabilities, were not acted upon. It was sensible for the new Government to undertake a fresh review through the ``Speaking Up for Justice'' report. Its recommendations, which we broadly supported, are included in the Bill.
Chapter I of Part II deals with pilots. It does not make a change that will immediately apply to criminal trials the length and breadth of the country. However, the next two chapters will make such changes. I mention pilots because some of the proposed changes have caused controversy and anxiety, and I should like the Minister to reassure the Committee that the Government are genuinely open-minded about the way in which the measure will work in practice, and that they will not introduce changes, as practice dictates, as the pilots are extended across the nation.
I hope that that will help the Committee to understand our approach to the rest of the Bill.
Clause 16 defines the witnesses who may be eligible for special measures. Those witnesses are children, people with a mental disorder or significant impairment of intelligence and social functioning and people with a physical disability or disorder. Such witnesses will be eligible for assistance when the court takes the view that the completeness and accuracy of their evidence will be affected. Completeness is especially important in relation to the quality of evidence. Subsection (5) deals with the coherence of witnesses' evidence, defining that as the ability to give answers that ``can be understood''.
Clause 16 is not contentious, as it is an introductory provision and merely deals with eligibility. However, later clauses in part II will be contentious.
I have just one question for the Minister. The clause defines children as those under 17 and states that they will always be eligible for assistance. The Minister knows that several organisations have raised the issue of whether that limit should be 18. When we discussed children and young people in our debates on part I, we were discussing those under 18. However, clause 16 deals with those under 17. The definition in the Children Act 1989 may be more appropriate.
Why have the Government chosen 17 as the limit beneath which special measures should automatically apply? A 17-year-old may qualify for assistance under another definition, but that is unlikely.
Ms Julia Drown (South Swindon): I shall add briefly to the debate. We should try to make the law as simple as possible so that it is not scary for families and especially young people. Marriage at 16 is recognised. The provision takes effect for witnesses under 17. The Children Act 1989 affects those under 18; 18 is the age at which one has the right to vote.
Those anomalies are already present in the law, but the Bill perpetuates them. Will the Minister provide clarification? Does he agree that, in principle, we should simplify the law so that families are not confused and the process is as simple as possible?
The Minister of State, Home Office (Mr. Paul Boateng): I shall respond to the point made by the hon. Member for Ryedale (Mr. Greenway) about whether being a lawyer is an advantage in considering such matters.
In one important respect, it is a great advantage to the Committee that the overwhelming majority of its members are not lawyers. That statement is not the result of a sudden rush of blood to the head or the denial of a lifetime devoted to the law. However, that lifetime has taught me that it is a sad day in court when the interests of lawyers prevail over those of lay people. The defendant, the witnesses and the jury are the most important people in a court of law. Lawyers—and legislators—should recognise that the proceedings in a court of law and the rules of evidence should make it as easy as possible for lay participants in a trial to play their respective roles and to fulfil their functions in criminal law.
1.45 pm
The crucial function of criminal law is to enable the evidence to be tested, to put the prosecution on proof of their case and thereby to safeguard the interests of the defendant, the victim and the other witnesses. That is what it is about.
In introducing the Bill, the Government recognise that in the past, the criminal law and the criminal justice system have not always got it right. All too often, witnesses have not been able to give of their best in court, for a variety of reasons. The measure is designed to protect the public interest and thus the interests of justice, striking a proper balance between the interests and rights of the defendant and those of the victim. That demands that the best evidence possible be laid before the jury. Fear, intimidation and the vulnerability of age or incapacity can mitigate against witnesses giving their best evidence. The proposal will ensure that the best evidence possible comes before the jury so that its Members can fulfil their vital role.
Part II of the Bill is designed to increase access to justice for the most vulnerable people in society. Cases involving vulnerable witnessses are sometimes abandoned or not even begun because of the fear or apprehension of the alleged victim or the witnesses, which makes it difficult or impossible for them to give evidence in court in the presence of someone who is accused of committing a crime against them. Such obstacles to giving evidence sometimes result in unacceptable attrition, preventing cases properly coming before a jury or a tribunal in a court of law.
We are determined to change the culture of the court to make it more victim-friendly and witness-friendly and thus to protect the interests of the public and of the defendant, both of which have an interest in the court being an effective forum in which to test evidence. Such a forum should not be ineffective and flawed.
Chapter I of part II of the Bill sets out a range of measures that courts can award to witnesses who need help to give their best evidence. Of course, not all physical or mental disorders or disabilities affect a witness's ability to give his best evidence. The witness may not need or want help. The court will have to decide whether the nature of the disorder or disability is likely to diminish the quality of the evidence because it affects its completeness, coherence and accuracy.
The views of witnesses are vital. Clause 16(4) ensures that the court takes those views into account in determining whether a witness is eligible for assistance on the grounds of incapacity. That should be done early enough to ensure that the witnesses' fear of or apprehension about giving evidence do not weigh so heavily on their minds that they do not attend the final trial, or are so debilitated at the prospect of giving evidence that they do not give of their best.
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