I beg to move amendment No. 527, in

clause 121, page 71, line 18, leave out

'it appears to the court'

and insert 'the court is satisfied'.

With this it will be convenient to discuss the following:

Amendment No. 529, in

clause 123, page 72, line 22, after 'if', insert

'the court is satisfied that'.

Amendment No. 530, in

clause 123, page 72, line 27, after 'Where', insert

'the court is satisfied that'.

The amendments raise two points. First, subsection (3) deals with the direction to be given by the court under subsection (1)(f), which refers to the

''direction that the recording should be admitted as evidence in chief of the witness, and the direction has not been rescinded''.

Under subsection (3)(b), the current proposal is that that direction

''may be made only if it appears to the court that—

(i) the witness's recollection of the events in question is likely to have been significantly better''.

If someone has recorded an incident with a video camera and believes that the film would aid their recollection, the clause allows the film to be produced as part of the evidence. The witness may say that although they were present—on the pavement, for example—they would rather rely on what is on the film than on their recollection of events.

The purpose of amendment No. 527 is slightly to raise the threshold for when video evidence would be acceptable. The change in wording would require the court to decide, using a decently high test, that the film would be more reliable or sufficiently reliable evidence. Those comments apply also to amendment No. 530, which would require the higher test for documents and statements made earlier.

Everyone who works in criminal courts knows about recollections of what someone said earlier—it is almost a joke. It is often the first evidential point with which students deal. The police officer refers to notes, normally written in their notebook, which we shall discuss in a later debate. The inevitable question, ''When did you make that note, officer?'' is followed by the inevitable answer, ''At the first available opportunity after the event.'' The purpose of the amendments is to ensure the strength of the evidence and to ensure that the court is satisfied rather than simply testing on a balance of probabilities.

My second point is about clause 123. Again, we propose the same test. The first is for videos, and the second is for documents or statements. I am easily pleased at this point in the proceedings, knowing that we are nearing the end of the run, although my hon. Friend the Member for Somerton and Frome has done all the work today. If the Minister would consider our reasonable arguments, I would be satisfied. The amendments were tabled simply to probe why the words in the Bill have been used as opposed to the alternatives that we have suggested.

I understand entirely why the hon. Gentleman proposed the amendments and have some sympathy with his approach. However, it is important to recognise why the chapter is in the Bill. Although it has the rather mundane heading of ''Miscellaneous and supplemental'', in many ways it goes to the heart of why we wish to reform the criminal justice system.

We want to rebalance the system in the interests of victims and witnesses, and the provisions are key to helping witnesses give the best evidence. It is crucial to ensure that rules of evidence do not artificially prevent the true and full story from being presented in court, and the provisions in chapter 3 will make it much easier for witnesses to give their evidence.

Clause 121 will allow a video-recorded statement to stand in place of the witness's main evidence in important cases, and clause 123 will give witnesses wider access to their statements so that they can refer to them when they give evidence. The main objectives of the reforms are to improve the position of witnesses giving evidence, and to ensure that courts have the best evidence available to them and that the rules of evidence assist in providing full and accurate accounts.

I hope that every member of the Committee understands how important the new provisions are. Video evidence can be extremely valuable for all witnesses, not just those who are young and vulnerable. I am always prepared to review decisions, but I must disappoint the hon. Gentleman by resisting the amendments, because they do not help the process that I have described.

Amendment No. 527 would require the court to be satisfied that the witness's recollection of events was better when his account was video-recorded than it would be at the time of trial before a recording could be admitted. Amendments Nos. 529 and 530 would require the court to apply a similar test before allowing a witness to use his statement or a transcript of an interview to refresh his memory. We do not think that those changes are necessary or desirable. They would create unnecessary work for a court in testing the powers of witnesses' recall before allowing them access to straightforward measures to assist them in giving their evidence.

Under clause 121(3), a video recording of an interview with a witness can replace the witness's main evidence if it appears to the court that his recollection of events is likely to have been better when the recording was made than by the time of the trial. That is intended to be no more than a common-sense test—one that the vast majority of witnesses would meet, unless there were particularly traumatic or unusual circumstances surrounding the recording of the statement.

An issue arises to be considered, does it not? Obviously, where a witness gives a statement to the police and it is video-recorded, it may be difficult to ascertain the extent to which he has been led in giving that version of events. It may, or may not, be apparent from the surrounding circumstances. However, what would happen when there was at least some evidence that leading questions had been asked to extract the information? Presumably the video evidence would fall foul of the fact that leading questions had been used to elicit it. How could that be reconciled with giving evidence in a witness box?

The hon. Gentleman is raising a slightly different point.

It just arose in my mind.

I am delighted that it did. I shall try to deal with it. However, the whole purpose of giving evidence, whether recorded on video or in any other way, is that it can be evaluated properly in court. To that extent, video evidence is no different from any other evidence. It would be completely evident whether the witness had been led. The normal tests and safeguards would apply. The potential problems are not connected with the nature of video recordings, but are far more to do with the questions alluded to by the hon. Member for Southwark, North and Bermondsey about how high a hurdle must be cleared before the evidence can be admitted.

The difference between us is simple. We believe that the hurdle should be lower. We are applying a common-sense test. The majority of witnesses will meet it. The normal safeguards of scrutiny and testing of evidence will be available, and courts will make their own decisions. We do not believe that it is necessary for the court to be satisfied—indeed, it would be an unduly onerous requirement.

As to the refreshing of memory, clause 123 is intended to create a presumption that witnesses in criminal proceedings may refresh their memory from their statement. They may do so if they say that the document represents their recollection at the time when they made it, and their recollection was likely to have been significantly better at the time the statement was made. That presumption reflects, as I said at the beginning of my remarks, the Government's manifesto commitment to give witnesses access to their statements while they give evidence. It also reflects the fact that witnesses have unfettered access to their statements outside the courtroom. It would undermine that presumption, and create unnecessary legal argument, if the court were required to be satisfied on the issues before it would allow witnesses access to statements or transcripts. The common law does not require that at present and we are not convinced that anything further is needed in the relevant cases.

I hope that I have given the hon. Member for Southwark, North and Bermondsey enough reassurance to enable him to withdraw the amendment. I assure him that, whatever happens, we shall continue to reflect on this and other matters.

I shall reflect on that, and shall seek leave to withdraw the amendment. However, the intervention by the hon. Member for Beaconsfield makes it logical for me to make the point that I was saving up for clause stand part. One of the concerns that has arisen in the context of video recording—and I appreciate that the clause is not about video recording of defendants, although the issue arises in that regard too—is ensuring that the court gets the whole picture.

Clause 122 will allow the court to consider whether part, but not all, of a recording may be admitted. Two relevant circumstances must be considered. First, part of a recording of, for example, your good self, Mr. Cran, is made and shown, yet somebody argues that he wants to see all of what you said on the day of the recording. Secondly, as the hon. Member for Beaconsfield said, people often say in court, ''Yes, I said that, but it was in answer to question X.''

When they ask questions, police officers and other investigators do not necessarily remember all the rules about not leading answers. They ask factual questions such as, ''Did you see somebody coming around the corner? Was it a man or a woman? Was the person tall or short? Was the person black or white?'' That is how evidence comes out. It does not take much imagination to see that an investigator can ask half of those questions by saying, ''Was it a man? Was he tall? Was he white?'', although, effectively, he is asking a series of leading questions.

What should now be the expected practice in those circumstances? I shall withdraw the amendment without prejudice so he is on safe ground. Is it expected that the whole of the recording would normally be shown in court unless both sides agreed that not to be necessary? Tautologous, repetitious or irrelevant material could easily be discarded. This is all about getting people to give evidence more contemporaneously, and in a more suitable and relaxed environment than a court—an interview room, for example. Therefore, will the film normally be of the interviewer as well as the interviewee, or of the interviewee only?

For audio recordings nowadays, the tape is set to run and both people are recorded; one does not segregate the two. It is important that one hears both the interviewee and the interviewer. Until recently, the technology meant that people used to debate whether the tape had been tampered with. However, technology has vastly improved, so one will hear question and answer, question and answer, and be able to determine whether any funny business is going on. If somebody screamed in the middle of the interview for no apparent reason, it might be that pressure was being applied.

I do not have a final view, but my present view is that it would be better practice generally for videos to have the same characteristic. A video can be well made using static cameras to film both the questioner and answerer. I shall be grateful to receive any indication that that is the Bill's intention.

If that is the case, I am absolutely signed up to the benefit that the provision will have for witnesses and victims. There is every merit in people immediately after the event and in a more comfortable environment—be it their home, an interview suite or a police station—participating in an interview, which is then produced at court. They do not have to endure all the trauma of the evidence-in-chief that a court appearance constitutes. Yes, they will still have to be cross-examined. They will still be asked, ''Is what you said on 21 November still what you believe?'', to which they may reply, ''Yes, that's my recollection. I do not wish to change it.'' However, it is a help for victims and witnesses to be able to do that.

I have listened carefully to my hon. Friend. Is not one of the perverse areas of advancing technology that one can identify discontinuities on film easily? However, digital recording methods are not excluded under clause 124, and it is difficult to assess whether evidence in that form has been tampered with.

That is a very good point. If proceedings are to be opened up to new sorts of evidence, we want to ensure that the procedures are more user-friendly and that we have protections. We also want to avoid time being taken in legal argument, with lawyers saying, ''Yes, my client did say that, but in response to a question that you have not shown. That is the only reason why he said what he did.''

I would be grateful if the Minister could give us a steer by telling us whether there will be practice directions and whether the procedures will be governed by the Police and Criminal Evidence Act 1984 or something else. I ask that in ignorance, and I hope that the system will work well on the basis of such evidence. At the same time, I want to ensure that safeguards are built in, so that lawyers do not advise their clients against becoming involved in these procedures, for fear that that may prejudice them later.

If I may, I shall take the opportunity to discuss an issue that has been raised, and doing so now may save time. It is linked to issues raised by clause 123, which relates to using documents to refresh memory. It may be helpful to discuss it now and to return later to the discrete issues raised by the clause.

Things always jump out as one reads a Bill, and I intervened on the Minister because of my growing realisation that, leaving aside hearsay, more and more evidence is likely to be given in court by indirect means. First, there will be video recordings not only of victims but, potentially, even of witnesses, which will show what they said when they were interviewed by the police. Secondly, documents will be used to refresh a witness's memory, and he will be shown his previous statements.

I, for one, have no great difficulty with that in principle, because giving evidence should not be an obstacle course. It can be helpful to recall evidence by looking at it or playing a video of the first version of a witness's statement to the police. At the same time, the Government must accept that at no stage in the Bill's passage has it been suggested that the ordinary rules of questioning should be changed. Central to those rules is the fact that one cannot ask leading questions of one's own witness.

The difficulty that I foresee with the clause—this applies just as much to clauses 122 and 123—is that it will often be difficult to ascertain whether comments made on video, or those that led to a person's original statement, which will be used to refresh their memory in the witness box, were induced by leading questions. I am not talking about a sinister conspiracy by those who originally investigated the offence, but my experience is that the police and other investigators often use leading questions when questioning a witness and trying to compile a witness statement or, for that matter, a video.

Such practices may be glaringly obvious in the case of a video, because the unedited version will show everything that transpired between the investigator and the witness, and one may pick up the overall flavour of what was said and the extent to which the witness was led. However, it may be much more

difficult when a document is used to refresh a witness's memory, as set out in clause 123. Those who wish to cross-examine a witness may therefore have considerable difficulty ascertaining whether he was induced to say anything and whether the jury is seeing an induced version of events, which results from the way in which questions were asked. To illustrate for the Minister that this is not some esoteric point, I shall give an example from my own experience.

My house was burgled in 1994, and, by good fortune, I tracked the burglar down to the house of a fence about 200 yards from I where lived. The fence was in residence, and everyone involved was arrested. The time came for me to go to the police station and give a statement to the police officer—it was the only time that I have ever had to do so in that setting. The police officer was very keen not to reveal the fact that the upstairs neighbour had let me into the property so that I should see the blood smears on the front door of the fence's house, which had occurred because the burglar had cut himself when on the property. He wanted to cut out that bit of the story, and the result was that the statement that he produced did not reflect what I had said.

The motives of the police officer may not have been proper, but he then did something even more improper. Having realised that I was becoming a stickler for the facts and that I would be unwilling to sign the statement in the form in which he had written it, he picked it up, looked at me and said, ''We'll get rid of that'', and tossed it in the wastepaper basket. The Minister will of course be aware that that unused material could and should have been preserved to be handed over to the defence. We then produced a proper statement. As it happens, I was never called to give evidence, and I think that the burglar was sentenced to a term of imprisonment.

That classic case brought home to me the fact that the police, perhaps for quite honourable reasons, were leading me in the making of the statement. They wanted the statement to be in a particular form in order to protect another witness whom they wanted to keep out of the picture. The police were concerned for his safety in view of the reputation of his ground-floor neighbour who had been arrested.

The defence could face difficulties when such evidence comes to be used as a tool in court—whether it be a video or a statement. Those acting on behalf of the defendant will be trying to cross-examine witnesses—they are entitled to ferret around, to see what they can find—but they will be handicapped by not knowing whether the proper rules of questioning were being observed. I do not have a solution to that conundrum.

One point that I make fairly forcefully is that guidelines will have to be issued to investigators to point out that potential pitfall and the necessity that statements should be given without leading comments being made. For a variety of reasons, however, I am not confident that that will happen. That may prove to be a serious handicap, because questions will constantly be raised about the manner in which those statements were originally made. I put that to the Minister now because it will save time when we

come to clause 123, but it is something that his Department will have to consider.

I shall start with the two concerns raised by the hon. Member for Southwark, North and Bermondsey. The first was on the exclusion of digitally recorded evidence, statements and so on. We are about to debate amendments tabled by the hon. Gentleman that go straight to the heart of the matter, so rather than repeat myself, I shall save those comments for later.

The hon. Gentleman and the hon. Member for Somerton and Frome went to the heart of the reliability of such evidence. The hon. Member for Beaconsfield, too, raised concerns about leading evidence. We should be clear about the technical problems, real or imagined, and the work that is under way to deal with them. I reassure the hon. Member for Somerton and Frome, who was concerned that it was easier to fiddle with digital evidence than with film. He is technically correct, but doing so is incredibly difficult and enormously expensively. It is possible to get over what in the trade is called a jump cut, but it can be done only with an enormous amount of expensive digital fiddling. It is now possible, but one cannot imagine any scenario in which it would be done. Such fiddling is much easier when dealing purely with audio recordings, as one can edit and slice virtually unnoticeably, but it is very difficult with visual material. I hope that that gives the hon. Gentleman some comfort.

At the heart of this issue is whether the interviewer and the interviewee are both seen. Facilitating that is common best practice, but there are trade-offs. Inevitably, one does not get quite such a tight view of the interviewee, so one cannot evaluate the body language so precisely. None the less, that is the current best practice, and we firmly intend it to continue. I hope that that also addresses the concerns raised by the hon. Member for Beaconsfield about leading questions. I shall come in a moment to whether anything can be excluded, which I hope will see off the hon. Gentleman's concerns. However, I hope that the fact that we will see the questioner as well as the witness being questioned will reassure all hon. Members.

May I push the Minister a little further? There is clearly a difference between best practice and the point that the hon. Member for Beaconsfield and I made—whether guidelines, codes of conduct or other things would have statutory force. It would be better if the practice were governed by a code of practice or a code of conduct that can be shown to be the norm by which everybody is expected to behave.

The hon. Gentleman raises a good point. The straight answer is that we are in the process of developing a protocol. Technology has evolved extremely quickly, and most courts are not yet equipped to deal with it, although they shortly will be. We must be ready for it. A programme of work is already under way to ensure that the courts can have confidence in the new technology. The Home Office is consulting widely on a protocol that will guide the police and the courts, and which should be followed when they are handling digital material. I welcome the

Committee's views on how that can best be achieved. The issues that hon. Members have raised are solvable. The gains from getting witnesses to testify and the quality of their evidence could be enormous.

The hon. Member for Beaconsfield asked a question that relates to clause 123 and the presumption that we want to create when a witness—

Order. I hope that the hon. Member will leave that matter until we come to clause 123.

I was about to ask the hon. Gentleman's leave to postpone my reply until we do so.

The hon. Member does not need his leave.

Postponing that discussion is helpful; it avoids going over the same ground. I want to make two final points.

First, as MPs and from experience of television interviews, we recognise the benefit of the full-frontal picture: one can watch somebody's body language, notice their nervousness and so on, and although only the back of the questioner's head can be seen, the whole commentary can be heard. There is no need for a sideways view of both the interviewee and the interviewer; the questions come, as it were, from the power of the camera. There are various ways to derive evidential benefit from a film, just as one can from somebody giving evidence in a court, where people can see the person, their demeanour and so on.

Secondly, I should be reassured if, perhaps by the time we reach Report and after consulting colleagues, the Minister could say that these welcome new processes—I understand the argument for them—will be governed by something that covers all those who regularly investigate. Occasionally, a film that has been shot by a member of the public—perhaps a wife interviewed a husband—will be introduced as evidence for some reason, although that will be the exception.

Having reassured the hon. Gentleman, I do not want to wind him up again. It is important to be clear about the matter and I do not want anybody to think that we are endorsing the scenario that he gave, as that would be misleading. The practice of filming over somebody's shoulder is open to abuse, because the viewer cannot see the person's mouth moving. It would be possible—it would rarely arise, and I do not want anybody to be misled—to play a different audio over the back view of the speaker. It is important that a film should be shot in such a way that it is possible to see the mouth moving; that is key. It is difficult to interfere fraudulently with a film—with digital technology, it is not impossible, but it is still difficult—if the mouth can be seen, which was the concern of the hon. Member for Somerton and Frome. The major protection is that the viewer sees the mouths of both parties.

Order. Mr. Wills, you are making the speech again. We shall return to Mr. Hughes.

I was trying to be conciliatory. However, I accept that the best practice is to see both, so the Minister's arguments are appreciated. I shall

leave it with him and his colleagues to try to reassure all of us. If we could have a code of practice or of conduct to regulate such evidence—just as there is for identity parades—that would give a clear way forward. The court would have a gold standard to go by, it would become common practice and witnesses would know where they stand and be reassured. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 121 ordered to stand part of the Bill.