Crime and Courts Bill [HL]

Lord Ahmad of Wimbledon Excerpts

Tuesday 18th December 2012 Lords Chamber

[Lord Beecham]

My Lords, I take the Government’s point about resources, but as my noble friend rightly points out, there are two sides to that equation. One is the cost to the system, which can flow from inadequate representation of defendants, adjournments and the rest of it, as well as the cost of providing it. Of course, there are defendants who get assistance in the form of interpretation. As it turns out, recent developments in interpreting services have been, to put it mildly, controversial. Contracts have been given to organisations that apparently have not performed very well, at considerable cost in terms of the fees paid to them. Equally, as might be the case in connection with people who are unable to understand proceedings and follow them unassisted, some of the interpreters who turned up to the courts were simply not up to the job. It has been something of a disaster.

This is an analogy for the Government to look at in terms of providing services for people who, for different reasons, are unable perhaps to follow a case properly, to understand it properly, or to give proper instructions to their legal advisers. I hope that the Government will look at that and look at this position in the round. The noble Baroness has already identified the discrepancy between witnesses and defendants. Here, we potentially have two classes of defendants, some of whom may not speak English adequately and for whom interpretation will be provided, and others who may not be able to follow because of learning disabilities or other aspects, and for whom nothing would be provided.

Looking at the whole situation surely is sensible. I hope that the Government will acknowledge that there is a disjunction here between what is provided for different classes of defendants, and will not simply put this on the back shelf but will look at it with a degree of urgency. Miscarriages of justice can flow at any time from failure to provide adequate assistance, whether that is legal aid or, as in this case at least, the kind of support that can be offered by those described in my noble friend’s amendment. I hope that the Government will acknowledge that there is an issue here and that, at the very least, if they are not able to respond firmly and conclusively tonight, that they will give it more urgent attention than was indicated in the letter which was recently sent out.

[Lord Ahmad of Wimbledon]

My Lords, I must admit that, as I listened to the debate, time stopped for a moment when I saw the annunciator freeze. I do not know whether that was due to the weight of arguments that were presented on the previous amendment. Nevertheless, my attention remains focused on this one. As noble Lords acknowledged—including the noble Lords, Lord Bradley and Lord Beecham—my noble friend Lord McNally, following the last debate, wrote to interested Peers on this amendment.

I have nothing specific to add but certainly I will seek to answer some of the questions that arose. As was said on Report in response to an amendment moved by my noble friend Lady Linklater, there is already a provision in statute for “certain vulnerable defendants” to receive assistance from an intermediary when giving evidence. I shall return to that point in a moment. That is in Section 104 of the Coroners and Justice Act 2009.

The point was made about the Government deferring implementation. It is important to understand that they decided to defer implementation until full consideration could be given to the practical arrangements and resource implications. I reassure the House that we are still looking at these practical and resource issues because they are important.

On the points raised about discrimination, not only does Section 104 provide for intermediaries to be used in support of defendants but the courts already have the power under common law to order such use when they consider it necessary.

The noble Lord, Lord Ramsbotham, referred to vulnerable defendants. As I said, common-law powers exist to appoint an intermediary to assist vulnerable defendants if and when the courts consider it necessary. Guidance, therefore—the Government have moved forward on this—on appointing intermediaries in such circumstances was issued to all courts last year. It is the duty of the courts to ensure that defendants receive a fair trial. In the case of vulnerable defendants, that entails making sure that they fully understand what is taking place and that trials are conducted to timetables that take account of their ability to concentrate.

The noble Baroness, Lady Kennedy, made a point about a fair trial for all vulnerable defendants. To give a couple of examples, the court can make an order allowing a vulnerable defendant, for example, to give evidence over a live link. Much more can also be done by the defendant’s legal representative to aid communication. A vulnerable defendant should always be represented, as one of the criteria in the interests of justice test that is used to determine whether an applicant is entitled to legal aid is that the defendant may not be able to understand the court proceedings.

Coming back to the crux of the point, it is the duty of the courts to ensure that defendants receive a fair trial. The Government are committed to ensuring that vulnerable defendants fully understand what is taking place. I have already alluded to the fact that much can be done in terms of the defendant’s legal representative to aid communication.

In view of the reassurances that I have given, the letter written by my noble friend Lord McNally and the assurance that the Government are looking at this and at the common-law provisions that exist, I hope that the noble Lord will be minded to withdraw his amendment.

[Lord Ramsbotham]

My Lords, I wonder whether the Minister could answer a question about the increase in the number of out-of-court settlements. This is of extreme concern to the Magistrates’ Association, not least because of the increase in the number of out-of-court settlements of cases involving violence.

--- Later in debate ---

[Lord Ahmad of Wimbledon]

The noble Lord raises an important point and, with the permission of the House, the Minister will write to him directly on that point. With the amendment as it stands, this issue may not have a direct impact, but the noble Lord raises an important point and the Minister will write to him.

[Lord Bradley]

It is disappointing that between Report and Third Reading the Government have not reached the conclusion that they should immediately implement Section 104, but I assure the Minister, as he would expect, that we will continue to pursue this matter with the implementation of the National Liaison and Diversion Programme, which fits neatly with the provisions for vulnerable defendants in court, to ensure that there is fairness of approach between witnesses and defendants in court proceedings. However, in the light of the Minister’s comments, I beg leave to withdraw the amendment.