Police, Crime, Sentencing and Courts Bill

Committee (10th Day)

Amendment 268

268: After Clause 170, insert the following new Clause— “Video recorded cross-examination or re-examination of complainants in respect of sexual offences and modern slavery offences (1) Section 28 of the Youth Justice and Criminal Evidence Act 1999 comes into force in relation to proceedings to which subsection (2) applies on the day on which this Act is passed.(2) This subsection applies where a witness is eligible for assistance by virtue of section 17(4) of the Youth Justice and Criminal Evidence Act 1999 (complainants in respect of a sexual offence or modern slavery offence who are witnesses in proceedings relating to that offence, or that offence and any other offences).(3) This section has effect notwithstanding section 68(3) of the Youth Justice and Criminal Evidence Act 1999.”Member’s explanatory statement This new clause would bring section 28 of the Youth Justice and Criminal Evidence Act 1999, which provides for the cross-examination of vulnerable witnesses to be recorded rather than undertaken in court, fully into force for victims of sexual offences and modern slavery offences.

My Lords, Section 28 of the Youth Justice and Criminal Evidence Act 1999 allows for the cross-examination of vulnerable witnesses and victims of adult sexual assault to take place separately from the trial. The purpose of this provision—following Section 27, which allows evidence in chief to be given before the trial—is to allow a victim of adult sexual assault to give their evidence in chief and be cross-examined in a period quite shortly after the incident. It means that they do not have to wait a very long time for what will be a terrible ordeal. It means that they give evidence at a point when the events are only recent, rather than after a long period has gone by.

There is nobody, I think, who does not regard these provisions as beneficial. The purpose of this amendment is to ensure that they are as available as possible throughout the Crown Court estate in England and Wales. My understanding of the position is that they are available in respect of the victims of adult sexual assault only in certain specified Crown Courts in England and Wales. This amendment seeks to ensure they are available everywhere and as soon as possible, by saying they would be, in effect, available on the day this Bill becomes law.

It has been said that one of the reasons for not making the provisions available is that they require judicial resource—you need a Crown Court judge in order to hear the evidence, even though it is separate from a trial. It strikes me as very odd that adult sexual violence is not a priority of the Crown Courts. If judicial resources are the problem, my suggestion would be that making resources available to hear the victims of serious adult sexual assault should come sufficiently high up the priorities so that there is a judge available to deal with it. On that basis, I beg to move.

My Lords, I very much understand the impatience of the noble and learned Lord, Lord Falconer, for the introduction of video recordings of cross-examination in cases involving sexual offences and modern slavery. It is important that evidence in such cases is given early and without pressure. However, I have some queries about the amendment.

The Government have introduced by stages these provisions under Section 16 of the Youth Justice and Criminal Evidence Act 1999 for witnesses

“under the age of 18 at the time of the hearing”

and witnesses suffering “from mental disorder” or

“a significant impairment of intelligence and social functioning.”

The section also provides for witnesses with a physical disability. Various courts have been permitted to hear evidence in these circumstances, culminating in March of this year, when the provisions were extended to Preston Crown Court. But it was only on 30 September—six weeks ago—that the provisions were extended under Section 17(4) for complaints in respect of a sexual offence or a modern slavery offence. Only four courts were involved—Durham, Harrow, Isleworth and Wood Green. I have not seen any evaluation of the use of these procedures under Section 16, although they were piloted as early as December 2013 in Kingston, Leeds and Liverpool. I would be grateful if the Minister could tell me whether such an evaluation exists and, if so, whether it could be made available.

As for the proposal in this amendment to extend the provisions wholesale under Section 17, it is obviously too soon to evaluate limited pilots from the end of September. There can surely not have been time yet for any direction to be made by any judge of the three courts for such special measures for sexual offences and modern slavery.

In this group, according to my listing, Amendment 268 is grouped with Amendments 286, 287, 288, 289, 290 and 291.

That introduces the question about the complainant’s sexual history; I do not think the noble and learned Lord addressed that when he opened the case. The basic position in relation to that issue is stated in Section 41(1) of the 1999 Act, which says that

“no evidence may be adduced, and … no question may be asked in cross-examination,”

where

“a person is charged with a sexual offence … except with the leave of the court”.

Amendments 286 to 291 are concerned with tightening up the circumstances in which leave may be given. The noble and learned Lord, Lord Falconer, would not allow by these amendments such evidence whenever the issue of consent arises, whether at the same time or same event as the subject matter of the charge or where there is such similarity in the sexual behaviour of the complainant to the charge that the similarity cannot reasonably be explained as a coincidence.

The noble and learned Lord’s amendment sets out the criteria which the judge “must” take into account, none of which is objectionable, save that it amounts to teaching the judge how to do his job. Perhaps it is useful to inform the public of the factors which a judge considering an application must consider, but I am sure a judge would consider those factors anyway at the present time.

I am, however, dubious about the noble and learned Lord’s Amendment 288, which denies any further application being made during the course of the trial. Proposed new Section 43A states that

“no judge may allow such application or admit any such questions or evidence.”

Every case is different. All sorts of new evidence may come to light in the course of the trial when publicity is given; that is one reason why the name of the defendant is given in a sexual case, even though the name of the complainant is withheld.

I can understand that the noble and learned Lord is anxious to ensure that an accused cannot hold an application to his chest with a view to springing it upon the prosecution and the complainant at the time of trial, but I do not believe that removing the discretion of the judge entirely to allow such applications in the course of the trial is the right way to proceed. By contrast, I support the noble and learned Lord’s Amendment 289, which would give the complainant a right to be heard on an application to introduce sexual history and to appeal the decision.

As for Amendments 290 and 291, if the data suggested is not being collected already, then the Ministry of Justice is in dereliction of its duty. Equally, I would agree that the investigation of rape and rape complaints and the admissibility of cross-examination of complainants on their sexual history should be the subject of training, but I would be surprised to find that such training does not already take place.

My Lords, I support these improved safeguards because although I have not been in court very often, and when I have been there, it has been mostly as the complainant or a witness, I do think that we need better support for victims—or the plaintiff—who at the moment are treated very much as bit players in the whole theatre. It seems that they are almost forgettable because the two protagonists are the defence and the prosecution, and they take centre stage. It was obvious when we debated the Domestic Abuse Bill, when we discussed anonymity and other techniques for helping witnesses give evidence in court, so clearly that is needed.

The witness is often treated as a sort of emotionless void, with the legal test focusing on whether the proposed measures will improve their ability to give evidence, rather than, say, protect them from the trauma, embarrassment and hurt of facing up against the accused. This is no more apparent than in the way we treat victims of sexual violence and rape. The Section 41 rules were a major step forward but still fall far short of what is necessary, and so the amendments in this group would help recognise victims as humans and not just incidental characters in the whole story. Most importantly, they would allow the complainant to have their own independent legal representation in Section 41 applications, rather than relying on prosecution counsel, who, in their role as administrators of justice, have many competing obligations to juggle.

I hope that the Minister will agree that there are still many unsolved challenges in the treatment of complainants, and they are in desperate need of solutions.

My Lords, I should have opened those other amendments, and it is an error on my part that I did not. I am very grateful to the noble Lord, Lord Thomas of Gresford, because he has done a bit of the work that I should have done.

If the noble and learned Lord decides to open them, which I would welcome, I would like to respond generally. So far, this debate has rushed along, and we were rather waiting for the noble and learned Lord, Lord Falconer, to tell us why he strongly supported all these amendments, and then we will answer them.