Police and Justice Bill

moved Amendment No. 191B: 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.