I beg to move amendment No. 528, in

clause 122, page 72, line 5, leave out paragraph (b).

This is a probing amendment about partial, as opposed to total, video film being shown. Paragraph (b) is the second of two cumulative parts of subsection (3). Currently, in considering whether part of a recording should be not admitted—leaving the rest admitted—the court must consider two things. The first is

''whether admitting that part would carry risk of prejudice to the defendant.''

As the clause is drafted, the Government are changing the risk to the defendant by saying that, in spite of that, the court might consider that

''the interests of justice nevertheless require it to be admitted in view of the desirability of showing the whole, or substantially the whole, of the recorded interview.''

That is a theme that the hon. Member for North Down and others have reiterated throughout our debates. Can one have a fair trial if the risk of prejudice to the defendant, which the court is required to avoid, can be discarded by changing the rules to bring in part of a film?

I am concerned that the inclusion of subsection (3)(b) might mean that we will end up with something that the judge would decide is prejudicial to the defendant. We can all think of scenarios in which that would apply. There are occasions on which a film that might have been filmed over an hour or two has been chopped up and still includes things that the prosecution have argued should not be there. However, for reasons that would appear only in the defence case, they might be relevant. The defendant or a witness might think that they should be included. What appears to be a throwaway statement, such as, ''I was very tired that morning,'' or ''I had just left home at six o'clock,'' could appear to be irrelevant. The danger is that they might become relevant, but one does not know that at the time.

The trouble is that, as court proceedings unroll, decisions are made at the time on the evidence. Once the evidence is in the public domain, and this applies much more to a jury case than a magistrates case, one cannot stop a jury being aware of it. All a judge can do in such circumstances, if he decides that a mistake has been made, is to call a halt to the trial. He may decide that there is no longer a chance of a fair trial because

the jury have heard evidence that they should not have heard. They have seen half of a film when they should have seen it all, or vice versa. I raise the issue in an inquiring way. I am concerned that it risks prejudicing the right to a fair trial. That is a right that we all want to preserve and that we are obliged to preserve under the European convention.

Of course I understand the hon. Gentleman's concerns, but accepting the amendment could lead to some very unwelcome consequences. I agree that we must be careful. Consider the following scenario: admitting part of a statement might result in a slight or marginal risk of prejudicing the defendant; however, that may be substantially outweighed in the interests of justice by showing the video recorded evidence in full. If one part was excluded it might be harder for the jury to understand other parts of the recording. There are a great many circumstances in which that might happen. It may be important in understanding how a witness is developing the evidence. There are times when that slight risk of prejudice is substantially outweighed.

The fact that this is an interests of justice test provides adequate protection for the defendant's interests. When the court considers that the risk of prejudice to a defendant is particularly acute, it would not consider it to be in the interests of justice to admit a statement. However, solely to frame the test around prejudice would ignore all other pertinent considerations. The test would also focus entirely on the court's reasons for excluding the evidence. Courts could find that a difficult test to apply, as there is no indication of the considerations that would support the evidence being admitted. It is instead desirable to make it clear to the courts what the balance of considerations should be in this context. Parliament adopted a balance of those factors for video recorded evidence in the Youth Justice and Criminal Evidence Act 1999. For that reason alone, it would be highly undesirable to have two tests for the courts to apply to very similar situations.

I hope that I have reassured the hon. Gentleman and that he will feel able to withdraw the amendment.

I will reflect on that. Let me leave the Minister with two thoughts. Prejudicial evidence could be left in if a witness was making a recording and said for example, ''I know that Michael Wills; he is a funny bloke. I know him; he is not to be trusted.'' That would clearly be prejudicial, although it does not mention previous convictions or other obvious prejudicial matters.

The second consideration is that one of the benefits of having pre-recorded evidence in court is that everybody knows what is coming up. One of the reasons that one of the most famous trials of last year did not succeed was that the key witness in the Damilola Taylor trial did not say what she was expected to say. That happens in many cases. The evidence falls short of being proof and the case is much weaker as a result. One of the benefits is that one knows what they will say because one has seen the evidence and the film beforehand. It seems that there is every advantage in having as much of that stuff as possible agreed, because it will save the court time in

not having to listen to arguments between lawyers and not having to send the jury out to argue about the evidence. However, without agreement on both sides, there could be arguments about whether all or part of the film should be included. That would undermine the advantage of the earlier process. I shall reflect on the Minister's comments, but we must ensure that we gain, in terms of improved criminal justice, without the disadvantage of triggering a whole set of other complications that would not save time in the long run. I beg to ask leave to withdraw the amendment.

I beg to move amendment No. 466, in

clause 122, page 72, line 8, leave out subsection (4).

The amendment corrects an unfortunate drafting error. Clause 122(4) cross-references the definition of prejudice with a definition in clause 96(2). However, as hon. Members will have noticed, there is no such corresponding definition in clause 96.

Scandalous.

No, just an unfortunate drafting error.

The amendment will remove the cross-reference. The notion of prejudice is one with which the courts are familiar and one that they apply to a range of circumstances, so there is no need for a statutory definition.

I was about to ask a question. Presumably, the Government had originally decided to include a definition of prejudice in clause 96(2) but subsequently decided not to. Will the Minister enlighten us on why that was?

I am sorry; the hon. Gentleman was obviously so busy reading his papers that he did not hear what I said when I explained why we took that decision. We did it because the notion of prejudice is one with which the courts are already familiar. I hope that that enlightens him.

Amendment agreed to.

Clause 122, as amended, ordered to stand part of the Bill.