House again in Committee.
Before Clause 47, insert the following new clause-
“ATTENDANCE BY ACCUSED AT CERTAIN PRELIMINARY OR SENTENCING HEARINGS
For section 57 of the Crime and Disorder Act 1998 (c. 37) (use of live television links at preliminary hearings) there is substituted- “PART 3A LIVE LINKS FOR ACCUSED'S ATTENDANCE AT CERTAIN PRELIMINARYAND SENTENCING HEARINGS 57A INTRODUCTORY
(1) This Part-
(a) applies to preliminary hearings and sentencing hearings in the course of proceedings for an offence; and (b) enables the court to direct the use of a live link for securing the accused's attendance at a hearing to which this Part applies, where he is held in custody at the time of the hearing. (2) The accused is to be treated as present in court when, by virtue of a live link direction under this Part, he attends a hearing through a live link from the place at which he is being held.
(3) In this Part-
“custody” includes- (a) police custody at a police station; (b) local authority accommodation to which a person is remanded or committed by virtue of section 23 of the Children and Young Persons Act 1969 (c. 54); “live link” means an arrangement by which a person (when not in the place where the hearing is being held) is able to see and hear, and to be seen and heard by, the court during a hearing (and for this purpose any impairment of eyesight or hearing is to be disregarded); “live link direction” means a direction relating to a hearing that requires the accused (if he is being held in custody during the hearing) to attend the hearing through a live link from the place at which he is being held; “preliminary hearing” means a hearing in the proceedings held before the start of the trial (within the meaning of subsection (11A) or (11B) of section 22 of the 1985 Act) including, in the case of proceedings in the Crown Court, a preparatory hearing held under- (a) section 7 of the Criminal Justice Act 1987 (cases of serious or complex fraud); or (b) section 29 of the Criminal Procedure and Investigations Act 1996 (other serious, complex or lengthy cases); “sentencing hearing” means any hearing following conviction which is held for the purpose of- (a) proceedings relating to the giving or rescinding of a direction under section 57C; (b) proceedings (in a magistrates' court) relating to committal to the Crown Court for sentencing; or (c) sentencing the offender or determining how the court should deal with him in respect of the offence. 57B USE OF LIVE LINK AT PRELIMINARY HEARINGS
(1) This section applies to any preliminary hearing which is to take place in the course of the proceedings.
(2) If it appears to the court before which the preliminary hearing is to take place that the accused is likely to be held in custody during that hearing, the court may give a live link direction under this section in relation to his attendance at the hearing.
(3) If a hearing takes place in relation to the giving or rescinding of such a direction, the court may require or permit a person attending the hearing to do so through a live link.
(4) The court shall not give or rescind such a direction (whether at a hearing or otherwise) unless the parties to the proceedings have been given the opportunity to make representations.
(5) Subsection (6) applies where-
(a) a live link direction under this section is in force, (b) the accused is attending a preliminary hearing through a live link by virtue of the direction, (c) the court convicts him of the offence in the course of that hearing (whether by virtue of a guilty plea or an indication of an intention to plead guilty), and (d) the court proposes to continue the hearing as a sentencing hearing in relation to the offence. (6) The accused may continue to attend through the live link by virtue of the direction if-
(a) the hearing is continued as a sentencing hearing in relation to the offence; (b) the accused consents to his continuing to attend through the live link; and (c) the court is satisfied that it is not contrary to the interests of justice for him to do so. (7) But the accused may not give oral evidence through the live link during a continued hearing under subsection (6) unless-
(a) he consents to give evidence in that way; and (b) the court is satisfied that it is not contrary to the interests of justice for him to give it in that way. (8) If in a case where it has power to do so a magistrates' court decides not to give a live link direction under this section, it shall-
(a) state in open court its reasons for not doing so; and (b) cause those reasons to be entered in the register of its proceedings. 57C USE OF LIVE LINK IN SENTENCING HEARINGS
(1) This section applies where the accused is convicted of the offence.
(2) If it appears to the court by or before which the accused is convicted that it is likely that he will be held in custody during any sentencing hearing for the offence, the court may give a live link direction under this section in relation to that hearing.
(3) The direction-
(a) may be given by the court of its own motion or on an application by a party; and (b) may be given in relation to all subsequent sentencing hearings before the court or to such hearing or hearings as may be specified or described in the direction. (4) The court may not give the direction unless-
(a) the offender has given his consent to the direction; and (b) the court is satisfied that it is not contrary to the interests of justice to give the direction. (5) The court may rescind the direction at any time before or during a hearing to which it relates if it appears to the court to be in the interests of justice to do so (but this does not affect the court's power to give a further live link direction in relation to the offender).
The court may exercise this power of its own motion or on an application by a party. (6) The offender may not give oral evidence while attending a hearing through a live link by virtue of this section unless-
(a) he consents to give evidence in that way; and (b) the court is satisfied that it is not contrary to the interests of justice for him to give it in that way. (7) The court must-
(a) state in open court its reasons for refusing an application for, or for the rescission of, a live link direction under this section; and (b) if it is a magistrates' court, cause those reasons to be entered in the register of its proceedings.””
The noble Baroness said: I shall speak to all the amendments standing in my name in this group. With the leave of the Committee, I intend to outline the nature of each of them relatively fully and to skim over the amendments tabled by others in the hope that that will help noble Lords to understand where the amendments fit and why their amendments may not be necessary.
The amendments in my name would extend the circumstances in which live links could be used in court in criminal cases. I apologise to the Committee for bringing forward these measures by way of amendment at this late stage. The justification for doing so is that they are needed to allow a pilot scheme to proceed, which would offer the potential for significant efficiency savings.
Amendment No. 191B would extend an existing provision that allows courts to order that a defendant in prison custody should attend hearings before the start of trial over a live link so that it would also apply, provided the prisoner consented, to sentencing hearings. That would permit the more effective use of existing live-link facilities and avoid the unnecessary transport of prisoners between prisons and courts. For example, under the current arrangements, where a defendant pleads guilty at a preliminary hearing, the hearing has to be adjourned and the prisoner brought to court before the court can proceed to sentence, even if the prisoner would like it to be dealt with otherwise. The amendment would allow the court to proceed straight to sentence, if appropriate.
The measure includes three safeguards to ensure fairness to the defendant. The first is that sentencing can take place over a live link only where the defendant consents. Secondly, where a defendant has to give evidence over a link, he or she must specifically consent to giving evidence in that way. Finally, the court will allow a live link to be used only where it is not contrary to the interests of justice to do so.
This amendment, by extending the definition of custody to cover police custody, will allow a pilot scheme to proceed in London. It involves using a live link between a police custody suite and a magistrates’ court operating rather later than normal court hours. Where a suspect has been charged and would otherwise have to be held in custody overnight, he might instead appear in court over a link, avoiding the need for a night in the cells. Where there is a guilty plea and the defendant is content to be sentenced on the spot, the case might even be disposed of there and then if the court decides that that is appropriate.
The benefits are potentially substantial and we are anxious to assess them. But a pilot cannot happen until the existing law has been amended so as to clarify that the first hearing in a case may take place over a live link and that the link can operate from police custody as well as from a prison. In addition, the full benefits of the pilot will not be realised without provision for a convicted defendant to be sentenced over a live link, provided, of course, that he consents to be so sentenced. The amendment would make those changes.
I entirely understand Amendments Nos. 191C to 191J tabled by the noble Baroness, Lady Anelay, and the noble Viscount, Lord Bridgeman. They have proposed amendments to ensure that the live link facilities enable a defendant to consult his lawyer privately. That is perfectly acceptable and reasonable.
I can reassure the Committee on this point. We certainly agree that it is essential for defendants who are appearing by a link to have access to legal advice, just as they would if they were physically present in court. The existing provision in Section 57 of the Crime and Disorder Act 1998 for preliminary hearings to be held over a link operates on the basis that there are facilities available for the defendant in prison to consult his lawyer in the courtroom, although there is no such requirement on the face of the Act. That system has worked effectively for years. Facilities whereby the defendant could take confidential advice from his lawyer before a hearing, and speak to his lawyer by telephone during the hearing, could also be made available for the sentencing and appeal hearings for which links could be used if these amendments were passed.
The amendments of the noble Baroness, Lady Anelay, and the noble Viscount, Lord Bridgeman, would also require that, before a defendant could consent to be sentenced or to give evidence during a sentencing hearing over a live link, the court would have to have received written evidence that the defendant had taken legal advice about using a live link. I can reassure the Committee that the defendant will have the opportunity to take legal advice on whether to appear over a live link, but I do not believe that a defendant who refuses legal advice should be precluded from consenting to appear over a live link for sentencing. I also believe that it would cause unnecessary delay for a court to have to wait for written evidence that a defendant had received legal advice, when that legal advice might often be taken moments before the hearing, or even during the hearing, particularly if it all happens over a live link.
On Amendment No. 194F, I am also proposing an amendment to Schedule 15 to apply the new provision for live links to review of sentence hearings under Section 74 of the Serious Organised Crime and Police Act 2005. Such hearings allow the defendant’s co-operation with the authorities to be considered and their sentence varied, in limited circumstances. The defendant’s consent would be required, as it is for a sentencing hearing.
On Amendment No. 191K, I am also seeking to introduce a new Chapter 1A into the Youth Justice and Criminal Evidence Act 1999 that would allow vulnerable defendants to give evidence over a live link if appropriate conditions are met. In SC v UK, the European Court of Human Rights found that an 11 year-old with a cognitive age of only six to eight years had not had a fair trial because his very low level of understanding about the proceedings and their consequences meant that he could not participate effectively in his trial. The solution that the Government have been discussing with the senior judiciary is to make available to vulnerable defendants the sort of special measures that apply to vulnerable witnesses, including using an appropriate adult to work with the defendant and defence counsel to ensure that the defendant can effectively participate throughout the trial.
One such measure—allowing vulnerable defendants to give evidence by way of a live link—requires legislation, as the existing statutory provision for witnesses explicitly excludes defendants. Giving evidence via a live link from a comfortable room in the courthouse, away from the formality of the courtroom itself, may be less distressing and difficult than giving evidence in the courtroom. We believe that we need to make this provision in order to bring us into compliance with our ECHR obligations.
My amendment enables the court to grant a defence application to give evidence over a live link if it is satisfied that three conditions are met: first, that it is in the interests of justice to do so; secondly, that the use of a live link would enable the defendant to participate more effectively in the proceedings; and, finally, that there is an identifiable reason why the defendant has a problem with giving oral evidence. The test for that last reason is different for juvenile and adult defendants to reflect the fact that it may not be that uncommon for juvenile defendants to require assistance in giving oral evidence. However, there should be a strong presumption that adult defendants are able to give oral evidence in court.
Amendments Nos. 191L and 191M, in the names of the noble Lord, Lord Dholakia, and the noble Baroness, Lady Linklater, would reduce the age at which the reduced threshold applies so that only those under 17 would benefit. For the purposes of the youth justice system, 17 year-olds are classified as children. I see no reason to depart from that policy and not to offer them the same safeguards as other children have for live video links. As the noble Baroness, Lady Linklater, has a clear devotion to children’s issues, I believe that she will concur with me on that.
In addition, the amendments of the noble Lord, Lord Dholakia, and the noble Baroness, Lady Linklater, would remove the requirement about a juvenile defendant’s identifiable reason—a low level of either intellectual ability or social skills—for having difficulty giving evidence orally in court. My amendment aims to ensure that vulnerable defendants receive a fair trial. Therefore, in due course, we will oppose their amendments, because they would allow all juvenile defendants to seek to avoid giving evidence in person in court. I gently suggest that defendants should be able to avoid giving evidence in court only if there is a risk that giving evidence in the courtroom itself would prevent the defendant from receiving a fair trial. There is of course an opportunity for the court to decide which childrenare particularly vulnerable—that may be more appropriate the more tender the age of the child, and it may change as the age group differs.
On Amendments Nos. 194ZA, 194G and 194H, I propose minor consequential amendments to the Youth Justice and Criminal Evidence Act 1999 under Schedule 15 and minor amendments to Clause 52, to ensure that reporting restrictions regarding the new clause allowing vulnerable defendants to give evidence over a live link does not apply in Scotland, which would have required a legislative consent motion.
On Amendment No. 191P, I propose to amend Section 22 of the Criminal Appeal Act 1968 to allow appellants to appear at the Court of Appeal (Criminal Division) over a live link from custody. The senior judiciary is very supportive of this amendment, which will help to prevent delays in court hearings regarding the transport of prisoners to the Court of Appeal. Noble Lords will be aware that in the majority of cases the appellant never gives evidence but can appear. Such an appearance can be incredibly disruptive for the appellant and, indeed, unnecessary for the court.
Amendments Nos. 191Q and 191R, again in the names of the noble Lord, Lord Dholakia, and the noble Baroness, Lady Linklater, would make it clear in the Bill that facilities would be available for appellants to consult their lawyer when present over a live link. The amendments would require that an appellant consented before a live link was used and that a defendant took legal advice before consenting to appear over a live link. They would also make it clear that the Court of Appeal must be satisfied that the use of a live link was not contrary to the interests of justice. Again, I can assure the Committee that facilities will be made available for appellants to consult their legal representatives. However, I hope that the Committee will agree that the Court of Appeal can be trusted to deal appropriately and fairly with appellants without further safeguards in the Bill.
Finally, Amendment No. 197 amends the Title to make it clear that the Bill involves changes to the circumstances in which live links can be used in court.
I have tried to explain the amendments comprehensively because I know that the Committee has not had an opportunity to consider them before. I understand that fuller consideration may be necessary and I hope that noble Lords will not press their amendments at this stage, although I also understand that that will not preclude them from coming back at Report or later to raise further issues of clarification. Indeed, those may conveniently go into the basket of issues that we may discuss between now and when the matter returns to the House. I commend the amendments and I beg to move.
Leave out lines 25 to 29 and insert-
““live link” means an arrangement by which- (a) a person, when not in the place where the hearing is being held, is able to see and hear, and to be seen and heard by, the court during a hearing (and for this purpose any impairment of eyesight or hearing is to be disregarded); (b) the person is able privately to seek and obtain advice from and privately to give instructions to his legal representatives in the court; and (c) the person's legal representatives in the court are able privately to seek and obtain instructions from and privately to give advice to the person;”
The noble Baroness said: I shall speak also to my remaining amendments in the group, Amendments Nos. 191C to 191J. Given the late hour, I do not propose on this occasion to speak to the further government amendments or the Liberal Democrat amendments in the group. At first sight, the government amendments appear to be a welcome development, but it is right that the noble Lord, Lord Dholakia, should have tabled his amendments to require the Government to justify their proposals. I entirely agree with the Minister that we will need to consider all these matters further in a constructive way before we reach Report in the autumn.
It is always difficult when amendments are tabled at this stage, when a Bill has already passed through another place, to consider new matters of policy, because, when matters return amended from here to another place, another place can debate them only under the procedure for the Commons consideration of Lords amendments—a very truncated procedure subject to the guillotine. I am grateful to the Minister for expediting these matters and bringing them forward in Committee before the Summer Recess. I know that that has put some extra pressure on the Bill team, whose members are to be congratulated on having expedited these matters so that we do not have to wait until Report to deal with them.
I am also grateful to the Minister for saying that she fully realises that, although we want to consider the constructive measures proposed by the Government, we will agree tonight on the new clauses being inserted in the Bill on the basis that that is not a hostage to fortune and we may need to return to them after a period of reflection.
There is indeed much with which we can agree, but some concerns have been raised about aspects of the new clauses. We are certainly in favour of reducing delay in the criminal justice system. Delay does not serve the interests of the public, the victims or the defendant; all are disserved by it. But if it is to be justice, as the old chestnut has it, it must be seen to be fair. We all agree on that. So I welcome the signal from the Government that they are looking for practical solutions to delays in the criminal justice system. Using modern technology to its best extent is an innovative and practical way forward and could be a real bonus to everyone.
The question is whether the Government's proposals are justifiable and appropriate. The noble Baroness has spoken at reasonable length to her amendments and I propose to do the same, in the hope that that will inform those whom we will need to consult during the Summer Recess and considerably shorten any proceedings that we need to undertake at Report. I also say that to assist the Deputy Chairman of Committees, so that he knows that I will not finish in the next minute or two.
When I first heard of the new clauses last week, it was on the basis that these proposals were to prevent the churn factor whereby those who are in prison awaiting a bail hearing or sentencing find themselves bussed out at some stage during the day—sometimes after some delay—and taken around the country while various other prisoners are dropped off at other courts, never knowing whether at the end of the day, when they have been sentenced, they will return to the same prison or have to go somewhere else a considerable distance away. Some may have sympathy for the prisoners, and some may not, but one can certainly have sympathy for the system itself, which is not functioning most effectively or efficiently. It is certainly right that the Government should look at practical measures to deal with the problem. Of course, I could have the immediate teasing reaction this evening and say that churn is even worse when the Government have their prisons stuffed full and do not have the proper measures in place to ensure that prisoners are well looked after, and that all they do is let them out on early release to be a threat to the public—but I shall not go down that avenue tonight.
I recognise that, whatever the prison population under any Government, it is more practical and proportionate to provide for live links to carry out proceedings that can be more properly dealt with in that way than by upsetting the whole system and involving a lot of people in unnecessary trouble. It is simply a question—our amendments are all about this—of which proceedings should be subject to this expedited procedure.
Late last week, when I received the draft new clauses and the covering letter from the Minister, it became clear that the proposals are rather more wide-ranging than we had originally anticipated. A particular concern has been raised by the prospect of a pilot project, to which the Minister has referred, which appeared—I stress “appeared”—to signal a return of the Government’s plans for night courts. I would be grateful if the Minister, who is shaking her head, could further clarify that. I thank her for her letter, which she and her officials prepared overnight and which arrived in my e-mail just as I came into the Chamber this afternoon. In that helpful letter, for which I am grateful, they refer to the night courts and to the pilot. They also repeat much of the original letter, so I will not do the same. They say that, although the magistrates’ courts participating in the pilot would need to operate rather later than normal court hours, they would not be open all night.
That gives rise to two questions. First, can the Minister explain how the new clauses would prevent the introduction of night courts without further legislative provision? Secondly, what consultation has there been with the Magistrates’ Association on the proposals for a pilot in London, and what was its response? The problem is that, although the Minister appears in her covering letter to give some assurance that the provisions are not about night courts, thenew clauses seem to give carte blanche to such a development.
This will not surprise the Minister, as I asked this question last night, but, as the proposal is heralded as a pilot, why not have a time limit on the power and then proceed more widely with further enabling powers once the pilot has been shown to work properly? What is the disadvantage in that? I am grateful to the Minister for meeting me yesterday evening to have a preliminary discussion on these matters. I also thank Justice, Liberty, the Prison Reform Trust, the Magistrates’ Association and the Law Society for their very swift response to the first sight that we gave them of the new clauses at the end of last week. My amendments have been tabled simply to raise some of the issues that they raised, and no more at this stage.
I am keenly aware of the delays that are sometimes caused by waiting for the defendants in custody to arrive in courts, and we will support any measures that can properly reduce such delays. Although the holding of preliminary and/or sentencing hearings by video link may be sensible and expedient in some cases, it may disadvantage the defendant and the court in others. We believe that a defendant should not be sentenced, give oral evidence or attend an appeal via a video link without his consent, and that he should be legally advised before consent is given. My amendments, as the Minister has recognised, have been tabled simply to raise that concern.
One of the disadvantages of live links is thatthey can make it difficult for the defendant to communicate confidentially with his, or her, lawyer. We therefore propose amending the definition of “live link” to ensure that facilities are available for such communication to take place. My amendment would ensure that in addition to being able to communicate with the court during the hearing, the person could seek and obtain legal advice from his legal representatives so that he and they are not disadvantaged in giving and receiving advice and instructions by reason of the live link. We need to know how that fits in with the protections under PACE and other protection measures to be sure that there is a proper way of people getting advice, and that it is confidential advice.
Of course, the ability to give instructions and receive legal advice and confidence is an essential part of the guarantee of a fair trial. It is of particular importance that live links do not compromise the ability to do so. I recognise that the Minister has said that she is not seeking to do that, it just how we get there. It is of even more importance if, as envisaged in the proposed new clauses, first appearances in the magistrates’ courts and sentencing can take place via the live link. Surely, that could mean that in some cases the only meeting between the defendant and his legal representative could be via the link. I look back to the second paragraph of the noble Baroness’s letter that came overnight in which she says:
“Facilities whereby the defendant could take confidential advice from his lawyer before a hearing and speak to his lawyer by telephone during the hearing would be available for the sentencing and appeal hearings for which links could be used if these amendments were passed”.
That part of the letter, which has not yet been seen by outside organisations, needs to be considered by them, because I think that the noble Baroness has taken us one stage further.
Other amendments in my group provide that the court should not proceed via live link without the defendant’s informed consent, following legal advice. The presence of the defendant in the court at pre-trial and sentencing hearings is an important safeguard for several human rights under the ECHR. As we have often said, the scars of self harm or abuse may be much more evident to the eye in person than on the video link, but it would have to be taken into account in any move forward in the way in which the Government propose.
The proposal that a person could plead guilty and be sentenced by the magistrates from police custody perhaps creates a risk that the person may be, by inducements or oppression, persuaded to admit the offence and plead guilty at the police station. I know that the noble Baroness will return to issues about PACE and protections in the system. It is a concern that it may influence the police and the CPS in making charging decisions to charge a person and put them before the video link court rather than using alternative disposals such as cautions and restorative solutions. We have certainly supported the Government in seeking those alternatives in the past.
The Magistrates’ Association says that it has a serious objection to the idea of custody including police stations and local authority accommodation. It finds this entirely unacceptable and says that the reason given by the noble Baroness in her first letter—because it has not seen the second letter—is alarming. It says that the concept of someone being taken to a police station, charged and then being offered an immediate court hearing by video link, rather than spending a night in custody, is an obvious example of pressure and improper incentive. It feels that this would not be efficiency but improper haste where the safeguards might not be adequate. I would be grateful if the noble Baroness could respond to the Magistrates’ Association’s concerns, which she may want to do more fully in a letter to me and perhaps the association. I feel sure that she will seek to talk to its members during the Summer Recess.
In conclusion, our amendments would ensure that a defendant should be sentenced or give evidence via live link only with his consent, and that the potential disadvantages of so doing should be explained to the defendant by his legal representatives before he gives that consent. In particular, I would be most grateful if the Minister could clarify whether there are any occasions on which live links will be used where a person is not required to give his or her express consent. I beg to move.
I rise to speak to Amendments Nos. 191L, 191M and 191P which address the issue that all children under the age of 17 are eligible for the live link direction. Having listened to the Minister, I am aware that there is a lot of common ground here and we welcome further discussions. However, I shall go through the argument briefly so as to lay the ground.
The purpose of the amendments is to introduce consistency, clarity and common sense into the clause. Under the Youth Justice and Criminal Evidence Act 1999, witnesses under the age of 18 are eligible for special measures on account of their age alone. It also recognises that their youth may make it necessary to make special measure directions so that the quality of their evidence can be maximised. However, the new clause does not include this provision for all child defendants. Instead it inserts an extra criterion that a child’s level of intellectual ability or social functioning must compromise their ability to participate effectively in the proceedings. We would argue that the criteria for ordering special measures for all witnesses, including the defendant, should be the same. Therefore we would change the age from 18 years old to 17 because that is the age under which children are eligible for special measures as witnesses on the ground of age under Section 16 of the Youth Justice and Criminal Evidence Act.
We also propose that the additional requirement regarding intellectual ability or social functioning be removed for children under 17 because it is simply not fair and may also force the court to make difficult determinations in all youth cases on the child defendant’s level of intellectual ability or social functioning. This in turn could lead to expert evidence in some cases, which would be costly, lengthy and enormously complicating. Indeed, if questions arise on whether a child’s level of intellectual ability or social functioning is compromised, it is questionable whether the child should be involved in a trial at all. A video link may indeed help a child to be less intimidated by the process of giving evidence, but it will not ease the difficulties for a child in participating effectively in a trial or understandingthe proceedings and their gravity, such as making decisions and giving instructions to his or her legal representatives. There will be some children for whom this is and will remain impossible.
As I have said, we would welcome further discussions with the Minister on this, so we regard these amendments as probing in nature.
I shall speak to Amendments Nos. 191Q and 191R tabled in my name and that of my noble friend Lord Dholakia. Both amendments were commended to us by Liberty and Justice. They would ensure that in addition to being able to communicate with the Court of Appeal during the hearing, the person could seek and obtain legal advice from his legal representatives so that he and they would not be disadvantaged in giving and receiving advice and instructions by reason of the live link. We believe that it is an essential part of the guarantee of a fair hearing that a person can communicate in confidence with his legal representatives at the Court of Appeal.
I hope that I have been able to give some comfort to all three noble Baronesses, Lady Anelay, Lady Linklater and Lady Harris, with the rather full explanations I set out earlier. I do not propose to reiterate those, but perhaps I may deal first with some of the issues raised by the noble Baroness, Lady Anelay.
I want to put on the record that it is absolutely not our intention to reintroduce night courts. I would also be more than happy to place a copy of the letter I wrote to the noble Baroness, Lady Anelay, and copied to the noble Lord, Lord Dholakia, in the Library of the House so that it is available for other noble Lords better to consider the details contained therein. In that letter, I make clear that we will test the concept of the use of live links in magistrates’ courts through a pilot to be run at rather later than normal court hours. The most important thing is to identify the London courts which are willing to participate in the pilots and negotiate with them on the kind of framework they are going to have. It would have been quite improper for us to have started negotiations on that matter, either with them or, indeed, with the Magistrates’ Association, before coming to this House and seeking permission to so do.
I very much welcome the comments made by the noble Baroness and her appreciation that these amendments have a practical orientation as opposed to anything else. They are designed to speed up proceedings and I can reassure the Committee that the Government do not in any way wish to diminish the rights of the individual in relation to access to lawyers or the way in which PACE applies. There are clear opportunities to save time and effort in relation to defendants, victims and witnesses. Justice delayed is justice denied, and delays can be very distressing for victims and for defendants who wish to admit guilt quickly and to be dealt with. I envisage that the kinds of cases that are likely to be disposed of in this way will be at the lower end of the scale. With most other offences, risk assessments and other issues have to be dealt with, reports have to be obtained in relation to sentencing and it simply is not possible to dispose of the more complex cases without the benefit of a little more mature reflection.
I invite the House to remember that we now have a new process in relation to charging. It is no longer the police who charge; the Crown prosecutor has to be satisfied about the nature of the charge and that the evidence produced is sufficient to charge. So, if you like, we have another safety net as regards the propriety of doing that and we believe that these provisions will be efficacious.
I hope that I have indicated with sufficient clarity the occasions when consent is to be asked for, first in relation to sentencing and then in relation to those other matters. I hope the Committee will feel that the Court of Appeal is safe to be trusted with the Human Rights Act, the ECHR, the PACE conditions and the need to have a lawyer. I shall certainly be very happy to consider these matters further and to write more fully in response if noble Lords feel that that is appropriate.
We do not think that there has been any improper haste in bringing these matters forward. It is not easy to see why a defendant should feel more under pressure as a result of an immediate court appearance than, for instance, the prospect of a night in thepolice cells, particularly if it is for a relatively straightforward offence. I think many defendants would like to get matters over and done with and not spend a night in the police cells. It is not something that holds a lot of attraction for many defendants. Indeed, for those of us who have had the benefitof seeing them at that stage, it is something to beavoided if at all possible, but absolutely necessary on occasion.
As to the point of the noble Baroness, Lady Linklater, in relation to juveniles, I remind her—I know she is very familiar with this—that juvenile courts are specifically created to be less intimidating. Some children—dependent on their age, I know—welcome the fact that they are, for once, included in proceedings. Many children are often excluded and things happen behind their backs—they are not involved and they are not made to feel responsible—and this can inure to their disadvantage. We do not think that it should be applied to all children because, if it were, we would have all children giving evidence via a video link if they were under 17. I am not sure whether that is what the noble Baroness is suggesting but, just to put it on record at this stage, we would find that very difficult to accept.
We shall have an opportunity to talk further about this and we will be able to respond more fully if the noble Baroness, Lady Harris, on reflection, having had the opportunity to read what I have said at great speed in introducing these amendments, thinks that it is necessary.
I very much thank Members of the Committee for the very helpful and collaborative way in which they have responded. If we were into teasing, I could tease the noble Baroness, Lady Anelay, by saying that I hope she is not seeking to suggest that those who should justly be in prison should be put elsewhere, but that, too, can be left for another day.
I teased the noble Baroness because it is the Government, in their early release schemes, who are releasing from prison those who should be there. We can see the difficulties arising from those with life sentences who have been lost after release by the probation service. However, we will return to those matters another day.
I am grateful to the noble Baroness for her statement that it is not the Government’s intention to return to night courts. I notice that she did not say that these provisions would preclude that, but I take on trust what she said. We will consider further whether any amendment needs to be made, but I certainly accept her assurance.
The Minister also gives proper recognition of PACE and the protections it contains. Of course we accept that, but it is a question of the interplay between the protections of PACE as operated by the police and the need of people accused of a crime to be able to get the protection of legal advice as well. She is right to point out that there has to be a provision for refusing legal advice. On occasion it is the very people who refuse it and then plead guilty who ought to have taken it in the first place. They then get tied up in knots, saying that they did it but they did not mean to. Then we get into intentionality, so there is a difficulty there.
I accept what the Minister says about the cases likely to be at the lower end, although they are not necessarily confined there by these provisions. One would expect that to be the case. I hear what the Minister says about consent; there are still some matters where expressed consent will not be required but may be acceptable.
So far, I have been looking from the point of view of protections for the defendant. Since it is late, perhaps I may be a little frivolous, although the police may not consider it so. I saw a report last week about another use of new technology: the police are piloting the use of a helmet with a camera on it so that you are really banged to rights if you are arrested. I had this apocalyptic vision of the Government’s justice system: the police take the video, nab the person and say, “Right, my son, here you are, it’s midnightand the next thing you are going to do is pleadguilty by live link”. That is a potentially interesting development.
Let us hope they have the relevant advice and the good sense to do that where it is right to do so. We are on the same side, but for some people, it is much better if the thing is disposed of properly. All of us want the proper protections to be in place so that the right result is achievable even if it is not always achieved in the justice system.
So far, I have looked at all the procedures from the point of view of the defendant, who may or may not be guilty. But one’s overall concern is still with the victim, as the noble Baroness says—the victim and the public. There is accountability to the victim and the public which sometimes only a court appearance can bring. We must get the right balance and make sure that we do not avoid public accountability through a court appearance where that is the right thing to do.
I welcome the opportunity to look at these matters during the summer. In the mean time, I beg leave to withdraw the amendment.
Amendment No. 191C, as an amendment to Amendment No. 191B, by leave, withdrawn.
[Amendments Nos. 191D to 191J, as amendments to Amendment No. 191B, not moved.]
On Question, Amendment No 191B agreed to.
Before Clause 47, insert the following new clause-
“EVIDENCE OF VULNERABLE ACCUSED
After section 33 of the Youth Justice and Criminal Evidence Act 1999 (c. 23) (interpretation etc of Chapter 1 of Part 2) there is inserted-
USE OF LIVE LINK FOR EVIDENCE OF CERTAIN ACCUSED PERSONS 33A LIVE LINK DIRECTIONS
(1) This section applies to any proceedings (whether in a magistrates' court or before the Crown Court) against a person for an offence.
(2) The court may, on the application of the accused, give a live link direction if it is satisfied-
(a) that the conditions in subsection (4) or, as the case may be, subsection (5) are met in relation to the accused; and (b) that it is in the interests of justice for the accused to give evidence through a live link. (3) A live link direction is a direction that any oral evidence to be given before the court by the accused is to be given through a live link.
(4) Where the accused is aged under 18 when the application is made, the conditions are that-
(a) his ability to participate effectively in the proceedings as a witness giving oral evidence in court is compromised by his level of intellectual ability or social functioning; and (b) use of a live link would enable him to participate more effectively in the proceedings as a witness (whether by improving the quality of his evidence or otherwise). (5) Where the accused has attained the age of 18 at that time, the conditions are that-
(a) he suffers from a mental disorder (within the meaningof the Mental Health Act 1983) or otherwise has a significant impairment of intelligence and social function; (b) he is for that reason unable to participate effectively in the proceedings as a witness giving oral evidence in court; and (c) use of a live link would enable him to participate more effectively in the proceedings as a witness (whether by improving the quality of his evidence or otherwise). (6) While a live link direction has effect the accused may not give oral evidence before the court in the proceedings otherwise than through a live link.
(7) The court may discharge a live link direction at any time before or during any hearing to which it applies if it appears to the court to be in the interests of justice to do so (but this does not affect the power to give a further live link direction in relation to the accused).
The court may exercise this power of its own motion or on an application by a party. (8) The court must state in open court its reasons for-
(a) giving or discharging a live link direction, or (b) refusing an application for or for the discharge of a live link direction, and, if it is a magistrates' court, it must cause those reasons to be entered in the register of its proceedings. 33B SECTION 33A: MEANING OF “LIVE LINK”
(1) In section 33A “live link” means an arrangement by which the accused, while absent from the place where the proceedings are being held, is able-
(a) to see and hear a person there; and (b) to be seen and heard by the persons mentioned in subsection (2); and for this purpose any impairment of eyesight or hearing is to be disregarded. (2) The persons are-
(a) the judge or justices (or both) and the jury (if there is one); (b) where there are two or more accused in the proceedings, each of the other accused; (c) legal representatives acting in the proceedings; and (d) any interpreter or other person appointed by the court to assist the accused. 33C SAVING
Nothing in this Chapter affects-
(a) any power of a court to make an order, give directions or give leave of any description in relation to any witness (including an accused), or (b) the operation of any rule of law relating to evidence in criminal proceedings.””
[Amendments Nos. 191L to 191N, as amendments to Amendment No. 191K, not moved.]
On Question, Amendment No. 191K agreed to.
Before Clause 47, insert the following new clause-
“APPEALS UNDER PART 1 OF THE CRIMINAL APPEAL ACT 1968
(1) In section 22 of the Criminal Appeal Act 1968 (c. 19) (right of appellant to be present at criminal appeal hearings in Court of Appeal), after subsection (3) there is inserted-
“(4) The Court of Appeal may give a live link direction in relation to a hearing at which the appellant is expected to be in custody but is entitled to be present (by virtue of subsection (1) or leave given under subsection (2)) at any time before the beginning of that hearing.
(5) For this purpose-
(a) a “live link direction” is a direction that the appellant (if he is being held in custody at the time of the hearing) is to attend the hearing through a live link from the place at which he is held; and (b) “live link” means an arrangement by which the appellant is able to see and hear, and to be seen and heard by, the Court of Appeal (and for this purpose any impairment of eyesight or hearing is to be disregarded). (6) The Court of Appeal-
(a) must not give a live link direction unless the parties to the appeal have had the opportunity to make representations about the giving of such a direction; and (b) may rescind a live link direction at any time before or during any hearing to which it applies (whether of its own motion or on the application of a party).” (2) In section 23 of that Act (giving of evidence), after subsection (4) there is inserted-
“(5) A live link direction under section 22(4) does not apply to the giving of oral evidence by the appellant at any hearing unless that direction, or any subsequent direction of the court, provides expressly for the giving of such evidence through a live link.”
(3) In section 31(2) of that Act (powers exercisable by single judge), after paragraph (c) there is inserted-
“(ca) to give a live link direction under section 22(4);”.”
[Amendments Nos. 191Q and 191R, as amendments to Amendment No. 191P, not moved.]
On Question, Amendment No. 191P agreed to.
Clause 47 [Orders and regulations]:
Page 37, line 18, leave out subsection (4).
The noble Baroness said: I shall also speakto Amendment No. 193, standing in my name. Amendment No. 193 is the key amendment, Amendment No. 192 being consequential. It is very much a probing amendment.
We debated at length on earlier Committee days the proposals to put many of the Bill’s provisions in secondary legislation and I do not wish to rehearse all those issues. However, as I said, key principles should be placed in primary legislation while only genuine matters of administrative detail should be in secondary legislation. I am not entirely convinced that we have yet achieved that balance, although I note and thank my noble friend for her offers to continue discussions with key stakeholders over the summer to try to resolve some of the more contentious issues.
I would expect that ultimately, and in some cases rightly, many provisions will still be subject to secondary legislation. The question then arises about whether those provisions should be subject to negative or affirmative resolution procedures. My noble friend has already indicated that she is likely to accept the recommendations of the Delegated Powers and Regulatory Reform Committee. The amendment would clarify what further issues she thinks should be subject to positive resolution—which are the important matters of principle that she would accept ought to be debated by Parliament and which are merely matters of administrative detail. Given that the criminal justice system is such an important guarantor of the freedoms of the people of this country, does she agree that it is important that fundamental changes to it should be fully scrutinised and debated by Parliament? I beg to move.
I support Amendment No. 193. The amendments would remove references to the process of negative resolution whereby orders put forward by the Secretary of State under aspects of this Bill would not necessarily be debated by Parliament, as the noble Baroness, Lady Henig, said. It makes all order-making powers proposed in the Bill subject to positive resolution, which means that orders must be debated and approved by both Houses of Parliament.
Once again, and finally, we reiterate that we have concerns about how secondary legislation is being used within the Bill to determine or change key constitutional functions. Assuming that at least some of those key aspects will remain in the Bill at the end of the legislative process, this is an additional safeguard to limit the use of those powers and ensure that secondary legislation formulated under the Bill is open to some parliamentary scrutiny.
I added my name in support of Amendment No. 193. The noble Baroness, Lady Henig, has neatly returned us, at the end of day four in Committee, to the concerns underlying all the debates that we had on that first day in Committee when we looked at the number of matters that had been shifted from primary to secondary legislation. She has underscored the concerns that we retain, not only that matters should be dealt with by negative resolution, but that they should be dealt with by secondary legislation at all.
Of course, I appreciate that Governments want flexibility, but there are some occasions on which one loses the security and effectiveness of an organisation if one removes matters from primary legislation. We have concerns about the maintenance of the tripartite relationship and the way in which it has been built up because of some of the provisions in the Bill. That is a signal to the fact that when we reach Report, we shall want to focus on some more closely defined issues. We had—or at least I had—a scattergun approach on the first day in Committee. I know that I shall spend the summer looking at the Bill far more narrowly. There may be only two or three issues that I shall wish to return to, but in some strength, on the matter of what should be in primary and secondary legislation and what is the appropriate method of scrutiny of that secondary legislation. So this is an appropriate way in which to end our debates. I know that there is a technical government amendment to follow, but otherwise the noble Baroness has achieved a neat and elliptical move.
I certainly agree with the noble Baroness, Lady Anelay, that this is a nice way in which to end, because it is a summation of where we have reached at the end of these four days in Committee. The short answer to my noble friend Lady Henig is that those orders are listed in Clause 47(5). We have said that we shall look again at the provisions relating to the membership or functions of police authorities with a view to tabling amendments on Report. I certainly envisage writing more of the detail into primary legislation. The Delegated Powers and Regulatory Reform Committee did a very good job in looking through the specific details and trying to differentiate between those aspects that could properly be dealt with by negative resolution and those that should properly be dealt with by affirmative resolution. I reaffirm my commitment that we shall together look at those issues between now and Report so that we can better hone any issues on which we can no longer agree.
I hope to be able to convince noble Lords that the division that we shall eventually arrive at is fair and proper. I absolutely understand that the noble Baroness in her scrutiny will come to a slightly different balance, but I hope that we shall not, because through this trilateral partnership that has taken place on many Bills we have been able to come to a resolution that has inured to the benefit of everybody. I am very hopeful that we shall be able to do that again. With that promise, I hope that my noble friend and noble Lords opposite will be content to rest this issue here and to move swiftly on to our last remaining, short consensual amendment.
I am very grateful for what my noble friend has said and the conciliatory spirit in which the points have been made. In view of the lateness of the hour, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 193 not moved.]
Clause 47 agreed to.
Clauses 48 to 50 agreed to.
Schedule 15 [Minor and consequential amendments]:
Page 150, leave out line 14 and insert-
“( ) Section 5 of that Act (significant links with domestic jurisdiction) is amended as follows.
( ) In subsection (2), for paragraph (b) there is substituted-
“(b) that any computer containing any program or data to which the accused by doing that act secured or intended to secure unauthorised access, or enabled or intended to enable unauthorised access to be secured, was in the home country concerned at that time.” ( ) In”
The noble Baroness said: This amendment will ensure that persons accredited by the police under Clause 13 are not eligible to serve as chairman or members of the Independent Police Complaints Commission. This will bring them into line with other categories of accredited person. I beg to move.
I thought we were on Amendment No. 194A. I beg the Committees’s pardon. Amendment No. 193A was in a group that was debated and agreed previously by the Committee, and I was going to move it formally. I went straighton to the next substantive amendment, Amendment No. 194A.
I intended to ask another question on Amendment No. 193A. I hope the Minister will not mind. This is about Section 2 of the Computer Misuse Act. I find it very difficult to understand why a person guilty of an offence in England and Wales under subsection (5) is liable to imprisonment for a term not exceeding 12 months, but, on summary conviction in Scotland for the same offence, is liable to a term not exceeding six months. I wanted to know precisely why there was this difference.
The second point I wanted to talk about, following the argument used by the noble Earl, Lord Northesk, was on Amendments Nos. 193A and 193B. We were talking about computer hacking. The government amendment talks about Section 5 of the Computer Misuse Act, which says:
“that any computer containing any program or data to which the accused secured or intended to secure unauthorised access by doing that act was in the home country concerned at that time”.
That is as far as England and Wales are concerned. I suspect it also applies to the sheriffdom in Scotland. There are cases of computer hacking going on at international level. Is the Act simply restricted to what happens when a person is in this country, or does it apply internationally as well?
I confess that to give the noble Lord a full explanation about the latter issue would take a little time, not least because of the complexities of the matters raised by the noble Earl, Lord Northesk, who is not in his place. I ask the noble Lord if he will allow me to write to him on those matters.
On the difference between England and Wales and Scotland, the noble Lord will be only too familiar with the fact that the two jurisdictions have slight differences. The different sentences simply reflect the sentencing provisions in each jurisdiction. That is one of the consequences of devolution. The Scots have their own sentencing structure, and the sentences relate directly to the slightly different offences inthe relevant sections. It is consistent in terms of devolution, although inconsistent in terms of sentencing levels.
I hope the noble Lord is content. I had thought, because these amendments were debated already, that we would have the luxury of simply moving them, but it is always a pleasure to answer the noble Lord.
On Question, amendment agreed to.
Page 150, line 39, at end insert-
“( ) In subsection (1), for paragraph (b) there is substituted-
“(b) any computer containing any program or data to which the accused by doing that act secured or intended to secure unauthorised access, or enabled or intended to enable unauthorised access to be secured, was in the sheriffdom at that time.””
Page 152, line 16, at end insert-
“( ) In subsection (2), after “such access” there is inserted “or to enable such access to be secured”.”
Page 152, line 25, at end insert-
“Police Act 1996 (c. 16) In section 91 of the Police Act 1996 (offence of causing disaffection amongst members of police forces etc), after subsection (2) there is inserted-
“(3) Liability under subsection (1) for any behaviour is in addition to any civil liability for that behaviour.””
Page 153, line 18, at end insert-
“Youth Justice and Criminal Evidence Act 1999 (c. 23) 31A (1) The Youth Justice and Criminal Evidence Act 1999 is amended as follows.
(2) In the cross-heading before section 47 (restrictions on reporting directions under Chapter 1 or 2 of Part 2) and in the heading to that section, for “Chapter I or II” there is substituted “Chapter 1, 1A or 2”.
(3) In section 47, in subsection (2)(a), after “section 19”, in the first place it occurs, there is inserted “, 33A”.”
Page 154, line 6, at end insert-
“In section 9 of the Police Reform Act 2002 (the Independent Police Complaints Commission), in subsection (3)(d), after “section 41” there is inserted “or 41A”.”
On Question, amendments agreed to.
Page 157, line 24, leave out paragraph 46 and insert-
“46 (1) Section 26 of that Act (parenting orders in respect of criminal conduct and anti-social behaviour) is amended as follows.
(2) In the heading, at the end there is inserted “: youth offending teams”.
(3) After subsection (8) there is inserted-
“(9) A person is eligible to be the responsible officer in relation to a parenting order under this section only if he is a member of a youth offending team.””
On Question, amendment agreed to.
Page 158, line 9, leave out from first “officers” to “registered” in line 10 and insert “in relation to parenting orders made on the application of local authorities in England or of”
On Question, amendment agreed to.
Page 158, line 18, leave out from first “officers” to “registered” in line 19 and insert “in relation to parenting orders made on the application of local authorities in Wales or of”
Page 158, line 30, leave out from “29),” to end of line 42 and insert “in the definition of “responsible officer”, for the words after “means” there is substituted “the person who is specified as such in the order,”
Page 159, line 18, at end insert-
“Serious Organised Crime and Police Act 2005 (c. 15) After section 75 of the Serious Organised Crime and Police Act 2005 (proceedings under section 74: exclusion of public), there is inserted-
“75A Proceedings under section 74: use of live link
Section 57C of the Crime and Disorder Act 1998 (use of live link in sentencing hearings) applies to hearings in proceedings relating to a reference under section 74(3) as it applies to sentencing hearings.””
On Question, amendments agreed to.
Schedule 15, as amended, agreed to.
Schedule 16 agreed to.
Clause 51 agreed to.
Clause 52 [Extent]:
Page 40, line 34, leave out “(5)” and insert “(5A)”
Page 40, line 45, at end insert-
“(5A) Subsection (5) does not apply to the amendments made by paragraph 31A of Schedule 15, which do not extend to Scotland.”
On Question, amendments agreed to.
Clause 52, as amended, agreed to.
In the Title:
[Amendments Nos. 195 and 196 not moved.]
Line 13, after “2003;” insert “to make further provision about the use of live links in criminal proceedings;”
On Question, amendment agreed to.
Title, as amended, agreed to.
House resumed: Bill reported with amendments.