|
Column Number: 629
Standing Committee B
Tuesday 28 January 2003
(Afternoon)
[Mr. James Cran in the Chair]
Clause 100
Cases where a witness is unavailable
Amendment proposed [this day]: No. 523, in
clause 100, page 58, line 38, at end insert
'but only after such steps as may reasonably be taken to address that fear have been taken'.—[Mr. Heath.]
2.30 pm
Question again proposed, That the amendment be made.
The Parliamentary Under-Secretary of State for the Home Department (Mr. Michael Wills): Before we broke, I had just begun to say how sympathetic we were to the instincts that prompted the amendment. Of course, we must do everything that we can to protect witnesses. That is the whole purpose of subsection (2)(e). It will replace and extend the existing powers to admit statements of frightened witnesses under the Criminal Justice Act 1988. The provision plays an important part in ensuring that the evidence of frightened witnesses can be heard by the court where appropriate.
The amendment, however well intentioned it is, raises the legitimate concern that the provision to admit statements of frightened witnesses should not be viewed as the only method of dealing with the problem of frightened witnesses. As I have said, we share that view and we see the provision as one of a range of options available to the court for dealing with frightened witnesses. I hope that the hon. Member for Somerton and Frome (Mr. Heath) can accept that we are on the same side to that extent. However, we do not believe that the amendment is necessary.
Leave can be granted only where it is in the interests of justice that the evidence be admitted. If, therefore, the witness's fears could be satisfactorily addressed, thus enabling him or her to give oral evidence, the interests of justice would not be served by admitting the out-of-court statement. The clause also makes specific reference, in subsection (4)(c), to the possibility of fear being addressed by a special measures direction under section 19 of the Youth Justice and Criminal Evidence Act 1999, which includes the use of measures such as the giving of evidence behind a screen, or the use of live video link.
The amendment would create a complex scheme. The court would first have to satisfy itself that all reasonable steps had been taken to address the fear, and then satisfy itself that the admission of the evidence was in the interests of justice. We believe that it is more desirable that any consideration as to whether the situation is best addressed in another manner is dealt with under the interests-of-justice test, because the alternative would be that even where it is
Column Number: 630
clearly in the interests of justice to admit the statement from a frightened witness, the court may be prevented from doing so unless all reasonable steps have been taken to address the fear.
I really do not want the hon. Gentleman to think that, because I am saying all this, we are not wholly sympathetic to the sentiment that prompted his amendment, because we are. We know that much more needs to be done to encourage reluctant witnesses to give evidence; it is one of the Government's priorities, and we have made that clear repeatedly. The issues have been examined by an interdepartmental working group, and ''Speaking up for Justice'', the report that it produced, made recommendations to improve the treatment of vulnerable and intimidated witnesses, including measures to assist in identifying the needs and wishes of witnesses and giving them greater support for the trial and the hearing. We will bring measures forward—there should be no doubt in the hon. Gentleman's mind about that. We are wholly sympathetic—
Mr. Graham Allen (Nottingham, North): Will my hon. Friend also accept that an advantage of doing it this way is that we could use police support officers? We could use civilians and others, provided that the rules are very clear. That will free up police officers to do the jobs that we would all like them to do, and they can do some of the evidence-taking or the live video links.
Mr. Wills: Very much so. I am grateful to my hon. Friend for his characteristically wise and helpful intervention.
I hope that I have said enough to reassure the hon. Member for Somerton and Frome that we are wholly in sympathy with the motives behind the amendment, but we think that he may end up by complicating the system rather than helping the victims and witnesses that he wants to help, as we do. I can assure him that we will bring measures forward.
Before the break, the hon. Member for North Down (Lady Hermon) raised an important question, which I want to address. As I understood it, her concern was essentially that the change might make hearsay more readily admissible in these particular circumstances. The Law Commission considered that issue carefully in its final report on hearsay, and concluded that the fact that a statement was not made to a police officer should not necessarily make it inadmissible.
I understand the concern that prompted the hon. Lady to raise the issue. It is a genuine concern, but on balance the Law Commission concluded that this was an unnecessary hurdle for the defence to overcome. We pursued that approach because we believed that it could put the defence at a distinct disadvantage if a defence witness had to be interviewed by a police officer or an equivalent person charged with a duty to investigate offences before the statement could be admitted. However, I emphasise that I do understand the concerns about too readily admitting hearsay, and I remind the Committee that there are safeguards under subsection (4), which we believe to be adequate.
Column Number: 631
I draw the hon. Lady's attention to them because I hope that they may give her some comfort in this respect.
I hope that the amendment can now be withdrawn.
Mr. David Heath (Somerton and Frome): I welcome you to the afternoon sitting, Mr. Cran, and wish you a happy birthday. What better place could there be to spend one's birthday than in the Criminal Justice Bill Committee?
I am most grateful to the Minister for the time and trouble that he has taken to explain his response to the amendment. As he says, there is no difference between us in our intent. His words were very helpful in setting out what would be expected of the judicial and policing authorities in dealing with the case of a frightened witness. I do genuinely accord with the Government's proposals in this area, which will be very timely. I hope that we may be able to engage with the Government constructively in identifying those areas that need further support.
I am also grateful for the response that the Minister gave to the hon. Member for—is it South Down or North?
Lady Hermon (North Down): Definitely North.
Mr. Heath: I do apologise. The Minister's response shed quite a lot of light on the proceedings.
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Mr. Dominic Grieve (Beaconsfield): I beg to move amendment No. 410, in
clause 100, page 58, line 40, leave out 'or of financial loss'.
I, too, wish you many happy returns, Mr. Cran.
Mr. Humfrey Malins (Woking): How old is he?
Mr. Grieve: That is not a proper question to ask.
The amendment concerns the same issue, but from a slightly different angle. There is no disagreement that those who are in fear constitute a proper exception to the hearsay rule, allowing statements to be read. However, the clause says that
'' 'fear' is to be widely construed and (for example) includes fear of the death or injury of another person''—
I can follow that easily—
''or of financial loss.''
The amendment seeks to delete those last four words.
I should make it clear that this is a probing amendment, certainly at this stage, but I think that the Minister will grasp without too much difficulty why that issue must give rise to some concern. One hopes that, in a trial in court, witnesses normally attend voluntarily. If they do not attend voluntarily, witness summonses are issued upon them. There may be a variety of reasons why they choose not to turn up. They may be frightened of intimidation, or they may be concerned that their family may be frightened, which gives rise to a perfectly clear exception to the hearsay rule. In my experience, the witness's not turning up in order not to lose a day's earnings has
Column Number: 632
never been given as a justification for allowing the statement to be read.
There is an important difference between the two. The first is outside the control of the witness—he has been put in fear. The second case concerns the commercial priorities of the witness; he chooses between his desire to participate in the administration of justice and his desire to make money. Apart from anything else, if a witness were brought to court having indicated that he did not want to go because he did not want to lose a day's work, that would normally be a subject of cross-examination by counsel, if they disagreed with what he said, about his attitude. Counsel would suggest that he was not interested in the search for the truth and could not really care less about the consequences of giving or not giving evidence in the context of whether someone might be convicted. It would clearly need to be examined. As worded, the clause worries me. It seems to introduce a device by which the evidence of such a witness would be admitted by means of hearsay without more ado.
Mr. Malins: I am following my hon. Friend's argument very carefully. Does he agree that the clause could go even wider—to financial loss not just to the witness but, if the words of subsection (3) were to be read closely with those in the earlier part of the clause, to another person? It is terribly wide.
Mr. Grieve: Well, yes. Take the case of someone whose employer has said that she does not want him to give evidence because she would lose money if he were not working in her shop. He might stay away, and escape the police who were sent to look for him after a witness summons had been issued, as sometimes happens. Thereupon, his evidence would be admitted. What worries me is that there will be no means whereby a proper examination can be carried out, first about the truth or otherwise of what he has said, and secondly about his general attitude. That is very important in making an assessment as to whether a witness is credible.
| 
