Crime and Courts Bill [HL]

Lord Bradley Excerpts

Tuesday 18th December 2012 Lords Chamber

Moved by

[Lord Bradley]

4: After Clause 29, insert the following new Clause—
“Provide assistance for vulnerable defendants through intermediaries
(1) An accused person in criminal proceedings is eligible for assistance by virtue of this section if the courts considers that the quality of that person’s participation in and understanding of court proceedings or of the evidence given by that person is likely to be diminished by reason of any circumstances falling within subsection (2).
(2) The circumstances falling within this subsection are that the accused person—
(a) suffers from mental disorder within the meaning of the Mental Health Act 1983, or(b) otherwise has a significant impairment of intelligence and social functioning.(3) Where the court determines that the accused person is eligible for assistance by virtue of this section, the court may then give a direction under this section providing for—
(a) assistance of the accused in preparing for court proceedings and in instructing the accused person’s legal representative to be provided by a person approved by the court for the purposes of this section (“an intermediary”),(b) assistance of the accused person in understanding and participating in court proceedings to be provided by the intermediary, and(c) the examination of the accused person to be conducted through the intermediary. (4) The Secretary of State may, by regulations, make provision about the recruitment, accreditation, training and appraisal of intermediaries approved by courts under this section.”

[Lord Bradley]

My Lords, I will not detain the House long on this new clause, as there was a good debate on the issue on Report, led admirably by the noble Baroness, Lady Linklater, who I am pleased to see in her place this evening. However, it is appropriate at Third Reading to press the Government again, briefly, on this overall matter, and particularly on the use of intermediaries in the court.

The issue of vulnerable defendants is well laid out in the report Fair Access to Justice from the Prison Reform Trust—I declare an interest as a trustee—and from my own independent report to the Government in 2009 on mental health, learning disabilities and the criminal justice system. The latter highlighted the need for vulnerable people to be supported in the criminal justice system along the criminal justice pathway; to be sure, among other things, that judges, magistrates and court staff are aware of the problems of the defendant at their first appearance in court; and that the defendant has the best opportunity for a fair trial. I add briefly that I am pleased that the current Government are in the process of implementing the 82 recommendations in my report. I praise the excellent work of the offender health division in the Department of Health and the Ministry of Justice through the cross-government National Programme Board. I hope that there will be no new barriers to the national rollout of liaison diversion services when the NHS Commissioning Board is fully established.

The new clause would ensure that, where necessary, vulnerable defendants are provided with the appropriate support to enable them to participate effectively in court proceedings, and in preparing for their own trial. One such measure is support provided by an intermediary, whose role is to facilitate two-way communication between the vulnerable individual and other participants in the court proceedings; and to ensure that their communication is as complete, accurate and coherent as possible.

Intermediaries are appointed for vulnerable witnesses, are registered, and are subject to a stringent selection, training and accreditation process, as well as quality assurance, regulation and monitoring procedures. Although vulnerable defendants do not have the same statutory rights to special measures as vulnerable witnesses do, intermediaries can be appointed at the discretion of the court. However, intermediaries who are appointed to support vulnerable defendants are not registered or regulated. The practice of registered and non-registered intermediaries being potentially in the same trial and paid different fees is clearly an anomaly in the Act.

My noble friend Lord Beecham spoke in support of the amendments to support vulnerable defendants, urging the Minister to take the time to take the amendment back so that he could report further at Third Reading. I can do no better than to quote the noble and learned Lord, Lord Woolf, who also supported the amendment:

“It is the judge’s most important duty to ensure the fairness of the trial. However, the problem identified by the noble Baroness, Lady Linklater, is one that the judge simply cannot tackle himself. There needs to be hands-on assistance of the sort she indicates”.—[Official Report, 10/12/12; col. 878.]

Responding on behalf of the Government, the Justice Minister, the noble Lord, Lord McNally, agreed to take the amendment away and to write to Peers who had supported the amendment,

“to explain why I cannot do so and what we are doing to keep this matter under review”.—[Official Report, 10/12/12; col. 879.]

I know that the Minister has written to the appropriate noble Lords on this matter. I understand that one of the key issues in that letter, which was sent earlier this month, is about resources. I hope that the Minister has taken the opportunity between Report and today to reflect further on the matter.

I realise that some eminent judges are present, so I am reluctant to be too certain on these matters, but when I was doing my review I went around many courts, and saw that when vulnerable defendants appeared for the first time there was a huge cost to the court in delays because of lack of support for that defendant. That often meant that the court process was delayed or adjourned to enable the issues around mental health and learning disabilities to be properly identified and assessed before the trial could continue.

The resource implication, therefore, is well offset by ensuring that vulnerable defendants at the first court appearance have that support in place. That would be cost-effective and, most importantly, would ensure that the person who is identified as vulnerable has as fair a trial as possible. I beg to move.

[Lord Ramsbotham]

My Lords, I put my name to this amendment for two reasons. The first was that earlier in the work on this Bill, my noble friend Lord Rix, who unfortunately cannot be in his place tonight, and I, together spoke with the president of the Queen’s Bench Division; he in his capacity as chairman of the All-Party Group on Learning Disabilities, and I as chairman of the All-Party Group on Speech and Language Difficulties. We were very concerned at the implications of people not being able to be properly represented, and, therefore, not being able to understand the court processes that they were likely to go through.

One reason why I have added my name to this amendment is because I have since learnt, from the chairman of the Magistrates’ Association, that there has been a very large increase in the number of out-of-court settlements. He quoted to me the fact that 50% of crimes of violence are now dealt with out of court. This worries me, as it worried my noble friend and I when we spoke to the president of the Queen’s Bench Division, because it is just as important that people are represented during those out-of-court engagements with the police as it is that they are in court.

I know that there is a resource issue, but like the noble Lord, Lord Bradley, I have to ask whether this is not a resource issue that we cannot afford not to tackle because of the resulting cost of not taking appropriate action on behalf of these defendants, who otherwise cannot take part properly in the court and out-of-court processes.

--- 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.

Amendment 4 withdrawn.