Criminal Justice and Courts Bill

Lord Ashton of Hyde Excerpts

Wednesday 22nd October 2014 Lords Chamber

[Lord Ashton of Hyde (Con)]

My Lords, I fully appreciate the laudable aims of this amendment, which seeks to make a positive change following the tragic cases of the three 17 year-olds who committed suicide following their encounters with the police. To lose a child is a tragedy, particularly in the sad circumstances surrounding the deaths of Joseph Lawton, Edward Thornber and Kesia Leatherbarrow. This Government have the utmost respect for the dedicated commitment of their families, who continue to campaign on this important issue.

The Government acted swiftly to ensure that they complied in full with the High Court decision in the judgment of Hughes Cousins-Chang. Changes were made as soon as possible following the statutory obligation to consult on PACE code changes. PACE codes C and H have been amended, and it is now mandatory that 17 year-olds have an appropriate adult with them at the police station and that the police inform a parent or guardian of their arrest and detention.

When this amendment was debated in the House on 23 July, noble Lords observed that the amendments to the PACE codes introduced inconsistencies between the Police and Criminal Evidence Act 1984—the primary legislation—and the PACE codes with respect to the treatment of 17 year-olds. On the one hand, they are treated as children and bestowed with the appropriate safeguards. However, when it comes to the location of their detention overnight post-charge, and their pre-court appearance, the noble Earl, Lord Listowel, and the noble Baronesses, Lady Kennedy and Lady Howe, made the point that the Police and Criminal Evidence Act continues to treat 17 year-olds as adults. They acknowledged that, while 17 year-olds may look like adults and sometimes act like adults, they are still children who find the environment of the police station to be frightening and threatening.

There are, of course, already in place important safeguards for all children under 18 who come into contact with the police. Section 11 of the Children Act 2004 places the police under an obligation to make arrangements to safeguard and promote the welfare of children when exercising their functions. This means that the police have to make arrangements to safeguard and promote the welfare of 17 year-olds detained post-charge overnight in the police station, and this is one way of ensuring that the best interests of those children can be upheld. Additionally, children under 18 have access to appropriate adults at the police station, who are with them throughout interviews and during procedures such as the taking of fingerprints and samples.

The Government are committed to ensuring that young people are protected and treated appropriately while in police custody. The noble Earl, Lord Listowel, spoke passionately in Committee on this matter, so I hope he will be pleased that, shortly after the High Court’s decision in the case of Hughes Cousins-Chang, the Government launched a review of the remaining pieces of primary legislation that treat 17 year-olds as adults. We expect the review to report shortly. As he mentioned, the working group responsible for reviewing the legislation reported to the PACE strategy board earlier this month.

The Home Office review was wider-reaching than the amendment. If it is indeed right to amend the Police and Criminal Evidence Act 1984 so that it treats 17 year-olds as children, then that principle should relate to all sections in the Act and not just the section that relates to overnight accommodation. Furthermore, any change to primary legislation needs full scrutiny, consultation and appropriate consideration by Parliament. This amendment is laudable in its aims but, in our opinion, represents a too-hurried and partial approach to the issue of how we treat young people at the age of 17 at the front end of the criminal justice system. There is more to be gained by pausing on this matter for the time being to enable the Home Office to consider the conclusions of its review. For these reasons, although I understand the reasoning behind the amendment, I respectfully ask the noble Earl to withdraw his amendment.

[The Earl of Listowel]

My Lords, I am grateful to the Minister for his careful response and for his recognition of the great distress that these sad events have caused the families in question. I was very pleased to hear that his department has undertaken to review these matters so that they can be changed as soon as possible.

I wonder if it might just be possible for him to go back and speak to his department to see if something could be done by Third Reading in this area, but I understand from what he said that this is unlikely. I appreciate that the Government are doing all they can as fast as they can to remedy this. I encourage them to work as hard as they can on this because I am sure that they, as much as any of us, wish to avoid these tragic events befalling any more children and families in the future. I am grateful to the Minister for his reply and I beg leave to withdraw my amendment.

--- Later in debate ---

[Lord Hope of Craighead]

My Lords, I want to make one or two points about Amendment 145, based upon my experience as a prosecutor taking evidence from very young children. One has to bear in mind that not every case in which a child is giving evidence is a case of child abuse. Some of them may be cases such as theft or something of that kind where the child is an essential witness but in no sense has been traumatised by the event about which they are speaking. One has to be a little careful about spreading the protection wider than is necessary.

The other point is that, speaking from my experience of prosecuting before juries, it is extremely important that juries should have an opportunity to assess the credibility of the child witness. I recall a particular case where I led evidence from a child aged six who was completely convincing and apparently unconcerned about the surroundings in which she was giving her evidence. The fact that she was so obviously credible made all the difference in securing a conviction against somebody who had in that case abducted her. I am a little nervous about intermediaries because that reduces the impact of the utter frankness which this little girl displayed when she was describing what happened to her. She could not, for obvious reasons, give a full account of all that was done to her because she did not have the language, but her account was absolutely gripping, and the jury, I could feel, sensed immediately that she was undoubtedly speaking the truth. It would not have been nearly so obvious if there had been some kind of protection around her.

There may be cases where the protection is essential; there may be others where it would be unwise if convictions are to be obtained. I am sure the Government will wish to think very carefully about the extremely important points that have been raised. It does require quite careful scrutiny.

[Lord Ashton of Hyde]

My Lords, I thank the noble Baroness, Lady Howe, for waiting so long to express her views on this issue to the House and her commitment to these issues. If I understand her intention correctly, she is seeking to introduce, through Amendment 144, a new clause which would provide for the use of remote sites for certain young witnesses and, through Amendment 145, to mandate the use of intermediaries for witnesses under the age of 11.

I first reassure the noble Baroness and this House that the Government take seriously the support of victims and witnesses across the criminal justice system. Indeed, special measures are already available to assist vulnerable and intimidated witnesses in court, including all witnesses under 18 years old. These measures can include screens round the witness box to shield the witness from the defendant, evidence by live link and the use of a registered intermediary or communications specialist to ensure that the witness understands the questions being asked.

Children are automatically eligible for special measures to ensure that they are able to give their best evidence. The presumption is that in most cases children should give their evidence by video-recorded statement, which would be played during the trial as their evidence in chief. In addition, any further evidence or cross-examination will ordinarily be conducted via live link and the court may permit a supporter to be present. The aim is to minimise the number of times a child is questioned and to enable them to give evidence from outside the courtroom.

We fully support looking at other ways to help vulnerable and intimidated witnesses give their best evidence. We know that the court environment can be challenging for some witnesses and are exploring ways in which we can use remote links and developments in technology to help such witnesses give evidence from outside the court building.

On Amendment 144, I advise the House that a majority of Crown and magistrates’ courts already have the facilities that allow witnesses to appear by secure videolink from a different location to the trial court. The use of remote videolinks, and extending this to other non-court sites, will not require any new legislation. We have recently committed to establishing at least one non-court location in each court area for vulnerable witnesses to give their evidence, as the noble Baroness mentioned.

The noble Baroness asked what else we were doing in this regard. We are using live-link technology in piloting pre-trial cross-examination in Kingston, Leeds and Liverpool Crown Courts to help vulnerable witnesses give their best evidence. This has the advantage of sparing witnesses from the full courtroom atmosphere by allowing the cross-examination to take place before the trial, as well as allowing evidence to be given closer to the time of the event. The pilot will end this month, followed by an evaluation and decision early next year on any further rollout if the measure is successful.

On Amendment 145, I am afraid that the Government are not convinced that the mandatory provision of a registered intermediary is necessary or always helpful—this pertains to the point made by the noble and learned Lord, Lord Hope. Intermediaries and other special measures should be used based on a witness’s assessed needs rather than offering blanket provision to any group. Witnesses retain the right to decline the offer of assistance from an intermediary if they do not want this assistance. We must instead ensure that witnesses receive the right type of special measure and that they are fully informed and supported, especially young children.

We are working closely with our partners in the criminal justice system to ensure that a witness’s need for a registered intermediary is identified. We continue to assess regularly the capacity of the intermediary workforce to ensure that we can plan for and meet demand. This includes considering future plans to increase the number of intermediaries available. We know that the demand for registered intermediaries is steadily increasing and is at its highest level since the start of the scheme 10 years ago, which is very encouraging. We are working with the police and the CPS to improve identification of the need for registered intermediaries for vulnerable witnesses in addition to assessing workforce capacity given the current demands for the scheme. This would include planning for future recruitment campaigns. On the details of Amendment 145, I can assure the noble Baroness that intermediaries must be screened by the Disclosure and Barring Service and meet a number of other criteria before joining the witness intermediary scheme.

I recognise and support the sentiments behind the amendments. However, in the light of our work in this area, the Government do not feel that either is necessary. In the light of my explanation, I hope that the noble Baroness will reconsider her position and not press her amendments.