Amendment proposed [this day]: No. 523, in

clause 100, page 58, line 38, at end insert

'but only after such steps as may reasonably be taken to address that fear have been taken'.—[Mr. Heath.]

Question again proposed, That the amendment be made.

Before we broke, I had just begun to say how sympathetic we were to the instincts that prompted the amendment. Of course, we must do everything that we can to protect witnesses. That is the whole purpose of subsection (2)(e). It will replace and extend the existing powers to admit statements of frightened witnesses under the Criminal Justice Act 1988. The provision plays an important part in ensuring that the evidence of frightened witnesses can be heard by the court where appropriate.

The amendment, however well intentioned it is, raises the legitimate concern that the provision to admit statements of frightened witnesses should not be viewed as the only method of dealing with the problem of frightened witnesses. As I have said, we share that view and we see the provision as one of a range of options available to the court for dealing with frightened witnesses. I hope that the hon. Member for Somerton and Frome (Mr. Heath) can accept that we are on the same side to that extent. However, we do not believe that the amendment is necessary.

Leave can be granted only where it is in the interests of justice that the evidence be admitted. If, therefore, the witness's fears could be satisfactorily addressed, thus enabling him or her to give oral evidence, the interests of justice would not be served by admitting the out-of-court statement. The clause also makes specific reference, in subsection (4)(c), to the possibility of fear being addressed by a special measures direction under section 19 of the Youth Justice and Criminal Evidence Act 1999, which includes the use of measures such as the giving of evidence behind a screen, or the use of live video link.

The amendment would create a complex scheme. The court would first have to satisfy itself that all reasonable steps had been taken to address the fear, and then satisfy itself that the admission of the evidence was in the interests of justice. We believe that it is more desirable that any consideration as to whether the situation is best addressed in another manner is dealt with under the interests-of-justice test, because the alternative would be that even where it is

clearly in the interests of justice to admit the statement from a frightened witness, the court may be prevented from doing so unless all reasonable steps have been taken to address the fear.

I really do not want the hon. Gentleman to think that, because I am saying all this, we are not wholly sympathetic to the sentiment that prompted his amendment, because we are. We know that much more needs to be done to encourage reluctant witnesses to give evidence; it is one of the Government's priorities, and we have made that clear repeatedly. The issues have been examined by an interdepartmental working group, and ''Speaking up for Justice'', the report that it produced, made recommendations to improve the treatment of vulnerable and intimidated witnesses, including measures to assist in identifying the needs and wishes of witnesses and giving them greater support for the trial and the hearing. We will bring measures forward—there should be no doubt in the hon. Gentleman's mind about that. We are wholly sympathetic—

Will my hon. Friend also accept that an advantage of doing it this way is that we could use police support officers? We could use civilians and others, provided that the rules are very clear. That will free up police officers to do the jobs that we would all like them to do, and they can do some of the evidence-taking or the live video links.

Very much so. I am grateful to my hon. Friend for his characteristically wise and helpful intervention.

I hope that I have said enough to reassure the hon. Member for Somerton and Frome that we are wholly in sympathy with the motives behind the amendment, but we think that he may end up by complicating the system rather than helping the victims and witnesses that he wants to help, as we do. I can assure him that we will bring measures forward.

Before the break, the hon. Member for North Down (Lady Hermon) raised an important question, which I want to address. As I understood it, her concern was essentially that the change might make hearsay more readily admissible in these particular circumstances. The Law Commission considered that issue carefully in its final report on hearsay, and concluded that the fact that a statement was not made to a police officer should not necessarily make it inadmissible.

I understand the concern that prompted the hon. Lady to raise the issue. It is a genuine concern, but on balance the Law Commission concluded that this was an unnecessary hurdle for the defence to overcome. We pursued that approach because we believed that it could put the defence at a distinct disadvantage if a defence witness had to be interviewed by a police officer or an equivalent person charged with a duty to investigate offences before the statement could be admitted. However, I emphasise that I do understand the concerns about too readily admitting hearsay, and I remind the Committee that there are safeguards under subsection (4), which we believe to be adequate.

I draw the hon. Lady's attention to them because I hope that they may give her some comfort in this respect.

I hope that the amendment can now be withdrawn.

I welcome you to the afternoon sitting, Mr. Cran, and wish you a happy birthday. What better place could there be to spend one's birthday than in the Criminal Justice Bill Committee?

I am most grateful to the Minister for the time and trouble that he has taken to explain his response to the amendment. As he says, there is no difference between us in our intent. His words were very helpful in setting out what would be expected of the judicial and policing authorities in dealing with the case of a frightened witness. I do genuinely accord with the Government's proposals in this area, which will be very timely. I hope that we may be able to engage with the Government constructively in identifying those areas that need further support.

I am also grateful for the response that the Minister gave to the hon. Member for—is it South Down or North?

Definitely North.

I do apologise. The Minister's response shed quite a lot of light on the proceedings.

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

I beg to move amendment No. 410, in

clause 100, page 58, line 40, leave out 'or of financial loss'.

I, too, wish you many happy returns, Mr. Cran.

How old is he?

That is not a proper question to ask.

The amendment concerns the same issue, but from a slightly different angle. There is no disagreement that those who are in fear constitute a proper exception to the hearsay rule, allowing statements to be read. However, the clause says that

'' 'fear' is to be widely construed and (for example) includes fear of the death or injury of another person''—

I can follow that easily—

''or of financial loss.''

The amendment seeks to delete those last four words.

I should make it clear that this is a probing amendment, certainly at this stage, but I think that the Minister will grasp without too much difficulty why that issue must give rise to some concern. One hopes that, in a trial in court, witnesses normally attend voluntarily. If they do not attend voluntarily, witness summonses are issued upon them. There may be a variety of reasons why they choose not to turn up. They may be frightened of intimidation, or they may be concerned that their family may be frightened, which gives rise to a perfectly clear exception to the hearsay rule. In my experience, the witness's not turning up in order not to lose a day's earnings has

never been given as a justification for allowing the statement to be read.

There is an important difference between the two. The first is outside the control of the witness—he has been put in fear. The second case concerns the commercial priorities of the witness; he chooses between his desire to participate in the administration of justice and his desire to make money. Apart from anything else, if a witness were brought to court having indicated that he did not want to go because he did not want to lose a day's work, that would normally be a subject of cross-examination by counsel, if they disagreed with what he said, about his attitude. Counsel would suggest that he was not interested in the search for the truth and could not really care less about the consequences of giving or not giving evidence in the context of whether someone might be convicted. It would clearly need to be examined. As worded, the clause worries me. It seems to introduce a device by which the evidence of such a witness would be admitted by means of hearsay without more ado.

I am following my hon. Friend's argument very carefully. Does he agree that the clause could go even wider—to financial loss not just to the witness but, if the words of subsection (3) were to be read closely with those in the earlier part of the clause, to another person? It is terribly wide.

Well, yes. Take the case of someone whose employer has said that she does not want him to give evidence because she would lose money if he were not working in her shop. He might stay away, and escape the police who were sent to look for him after a witness summons had been issued, as sometimes happens. Thereupon, his evidence would be admitted. What worries me is that there will be no means whereby a proper examination can be carried out, first about the truth or otherwise of what he has said, and secondly about his general attitude. That is very important in making an assessment as to whether a witness is credible.

Does financial loss mean someone pouring paint stripper on the car of a witness? That would incur significant financial loss, and is a common practice, unfortunately, in the area that I represent.

The hon. Gentleman makes a very good point. I should have thought that that would come under fear, and my hon. Friend the Member for Woking (Mr. Malins) whispers that he agrees. That is intimidation, and I am happy with the principle that an intimidated witness may have his evidence read. It would be a usual safeguard, and it already happens under certain circumstances. However, the wording is much too wide. I fear that it will be an open sesame formula for prosecuting counsel to argue that because Mr. Bloggins cannot come to court—he has said down the telephone that he is too busy and does not want to lose money—his statement will go in. It should not. I hope to have a positive response from the Minister, if necessary about the willingness to rewrite the clause.

I entirely understand the point made by the hon. Member for Beaconsfield (Mr. Grieve). I would also understand a response that there are many

forms of intimidation, some of which do not involve fear for safety of life or limb, but which have an economic bearing on the livelihood and well-being of the person being intimidated. At present, I believe that the wording is too loose, but I understand the need for the provision to encompass economic as well as physical threats. I hope that the Minister will take the opportunity to reflect on that, and to consider whether there is a better way to express what I suspect he is trying to say in the Bill.

First, Mr. Cran, I apologise for being remiss in not wishing you a happy birthday. I join colleagues in wishing you a splendid day.

I understand the concern expressed by hon. Members, but they may not have read the clause with the necessary care. We believe that the concerns expressed by the hon. Member for Beaconsfield are covered by subsection (4). The clause makes provision for the use of evidence in out of court witness statements, with the leave of the court, where the witness is too frightened to testify or to continue to testify, and leave can be given only if it is in the interests of justice. That covers the point raised by the hon. Gentleman. He may ask why we included such a provision.

The clause does not attempt to define what constitutes a sufficient basis for fear. Instead, it states that fear should be interpreted widely, and it gives examples such as

''fear of the death or injury of another person or of financial loss'' as sufficient grounds for fear. The clause uses wording suggested by the Law Commission in its draft Bill, and we agree that although it is not possible to lay down a rigid categorisation of what might give rise to fear, because human beings are infinitely various, and circumstances similarly, so we ought to have regard to that infinite variety of human experience. It is nevertheless helpful that the court should have an indication of the breadth of the term.

The amendment seeks to remove the fear of financial loss from the clause, but we believe that it is a helpful guide for courts in deciding what may properly be said to constitute fear. If we removed that provision, it would mean that the courts would be able to hold that financial loss was specifically not intended to be covered by Parliament under the scope of fear. We believe that that is highly undesirable.

Does the Minister therefore think that it is in the interests of justice for the witness to have his statement read on the ground, for example, that he would lose a day's pay? It is a completely new precedent; will he give us an example?

The hon. Gentleman, with his most distinguished legal background, would not expect me to make a judgment like that in Committee. He is nodding in agreement. I ask him to consider what would happen if we removed the provision. I shall give an example, because it is important that we should have some idea of the sort of circumstances. I cannot answer his specific question; it would be for the court to decide in the light of the relevant circumstances. We

can all form our own judgment about whether the graphic description that the hon. Member for Beaconsfield gave us would be in the interests of justice.

I shall develop the example given by my hon. Friend the Member for Nottingham, North (Mr. Allen) in a moment, but I shall first spell out what the Law Commission said in its report, which is the basis of the provision. The Law Commission said:

''we find it hard to envisage a situation where a court would be minded to admit the statement if it had the power to do so, but where it ought to be precluded from doing so because the particular kind of fear from which the witness was suffering was not the kind that ought to suffice.''

That was the Law Commission's view.

As an example, to spell the matter out further, imagine a local corner shop in a troublesome estate. Many of us have such shops in our constituencies. The owners of the shop might have a well founded fear that by coming forward to give evidence they will lose customers. The matter is not only about pounds and pence. Although it could be construed as financial loss, the problem goes right to the heart of that corner shop owner's livelihood and way of life. We think that it would be wrong to try to preclude the courts, which would, if we were to agree to the amendment, be able to hold that Parliament did not intend financial loss to be covered.

I support every word that the Minister says. I shall give him two further examples: one from my political life and one from my legal life. In my political life, I was told just a few weeks ago that a local business opposite my offices was threatened with closure following an incident. That business had been going for 100 years. In my legal life, I came across a situation in which a villain routinely threatened to fuse the lights in, for example, department stores, in order to affect their revenue so greatly that they would be intimidated.

I am very grateful to my hon. Friend. He gave two good examples of the sort of cases that we want the Bill to cover.

I do not disagree with what the hon. Member for Wellingborough (Mr. Stinchcombe) said one bit. However, there is a huge difference between that and mere inconvenience with financial loss that might prevent someone from attending court. Although I accept that subsection (4)(d) refers to ''any other relevant circumstances'', the provisions as currently drafted are extraordinarily wide, and they do not need to be.

We go to the heart of the question of what we allow the courts. We must strike a balance between clarity and flexibility, and we are endeavouring to do so. Subsection (3) gives some examples of the sorts of things that we are talking about, such as

''fear of the death or injury of another person''.

Everyone who has spoken on the matter agrees that that is legitimate, and the amendment does not seek to change that. How do we cater for the sorts of examples that my hon. Friend the Member for Wellingborough gave? We have based our attempt to do so on what the

Law Commission has done, in all its wisdom and after all its work.

I ask the hon. Member for Beaconsfield to consider the seriousness of the cases in question. We are not talking about a matter of a few pounds and pence, but significant fears that can arise about damage to one's whole way of life. We must find a way to cover that in the Bill. We have not only provided safeguards in subsection (4)(d), but elsewhere in subsection (4), which says that

''the statement ought to be admitted in the interests of justice''.

We believe that that is an adequate safeguard against any trivialisation of the proposition. I invite the hon. Gentleman to consider that while my hon. Friend the Member for Wellingborough speaks.

Again I can reinforce the argument that the Minister is making. There is a further protection in the clause, in that the word ''fear'' is used, which connotes something rather different from inconvenience.

Again I can only entirely agree with my hon. Friend.

It may be necessary for me to develop my arguments in reply. I tell the Minister that, even if the amendment were not agreed to, it would be perfectly possible to insert another subsection that said that fear could not be fear of financial loss stemming merely from the inconvenience of having to attend court. That is the point. I fully accept that one can have a genuine fear of financial loss that results from intimidation. I want that to be covered. However, as the provisions are drafted, the use of the words ''financial loss'' in subsection (3) is most unfortunate. I could say to the Minister, ''I fear that, by going to court on Tuesday, I shall lose my contract to work in someone's house and I shall lose a lot of money.'' That would not be a legitimate ground for allowing that statement to be read, and it would not be legitimate in any circumstances.

We are reaching the point when we can curtail this discussion, but let me have one last attempt to persuade the hon. Gentleman that his concerns—real concerns, which I do not regard as trivial, as he is articulating something that is precious to our system of justice—are adequately catered for. As my hon. Friend the Member for Wellingborough has said, fear is quite different from inconvenience. We have made it clear that the provision will apply only when that is in the interests of justice. The actual circumstances that arise in court may be more complex than the situation described by the hon. Gentleman, but I find it difficult to imagine how any court could regard it as in the interests of justice for the provision to apply in the specific circumstances that he outlined. We must be careful about how we fetter the discretion of judges to apply their wisdom to the infinite variety of human experience.

I do not want to start the Minister on a whole new line of argument, because I am finding his current argument persuasive, but he referred several times to a well-founded fear. That makes me wonder

whether the fear must be well founded, genuine and reasonable or whether a fear that is real to the person but which is not based on anything that is reasonable or well founded would be sufficient. Or would that come under subsection (2)(b), which covers mental condition?

I was not conscious of using the words ''well founded.'' The court must decide whether it would be reasonable. I return to the safeguard that we have included about the interests of justice. We must be very careful about prescribing what constitutes a reasonable ground for fear because that will change according to the circumstances. Obviously, the life history and experience of an individual will determine what is a well-grounded fear in the case of that individual. What may be a well-grounded fear for one person in one particular environment may be quite different from the well-grounded fear of another individual. I urge caution about being too prescriptive. Throughout, we must strike a balance between clarity and flexibility. We have endeavoured to strike that balance in the clause.

I am not going to test the Minister any further. It just occurs to me that there will be circumstances in which a fear is ill founded and based on superstition, but it will still prevent a person from coming to court to give their testimony. I am trying to ascertain whether the court would accept, as grounds for admitting hearsay evidence in that form, the fact that a person was scared stiff that the sky would fall on their head if they went anywhere near the Old Bailey on that day.

I am not aware that the sky falling on someone's head would constitute sufficient grounds.

It would cause injury.

It may.

I think that we have exhausted all the possibilities. I hope that I have reassured hon. Members that there are adequate safeguards in place and that we have tried to cater for the sorts of anxieties that may damage the interests of justice. In the light of that, I hope that the amendment will be withdrawn.

I wonder whether the clause covers smart-Aleck lawyers who keep adjourning and deferring cases so as to drive witnesses to distraction. The witnesses in those cases do not lose one day's pay; they suffer the indignity of not knowing when they will return to court, then there is another adjournment and they lose another day's pay. I do not imagine that the clause covers that pernicious practice, which obstructs the course of justice.

My hon. Friend makes a good point.

Mr. Malins rose—

I fear that every time I stand up, I open up a new area of argument. However, my hon. Friend may rest assured that we shall introduce measures to deal with unnecessary and unwelcome obstructions to the course of justice.

I say to the hon. Member for Nottingham, North, whose views I respect on a

broad range of subjects, that he is entirely wrong. Lawyers do not have the power to adjourn cases indefinitely in order to distract witnesses. Judges have the power to adjourn a case and will never do so for an improper reason. It is effectively a defamation of the whole Bar and the solicitors' profession to suggest that they would have such a motive.

We all live and learn. I hope that after this interesting and wide-ranging discussion, the hon. Gentleman will feel free to withdraw the amendment.

The Minister has persuaded me that there are safeguards within the clause that are designed to steer the judge towards the correct decision when he has to make it. However, that does not get away from the fact that the clause is badly drafted. It need not be drafted so badly in order to achieve its desired effect. Take the matter of fear and the context in which it has been placed. I think that the Minister is aiming to address the fear of a potential witness that by going to court to give evidence he might incur unpleasant consequences: he might be adversely targeted in an improper and unlawful fashion, whether by finding paint stripper on his car, having his windows broken at night, seeing his children or a relative intimidated or by being intimidated—or worse—himself. No problem—there is complete unanimity on the issue. However, people's fears—in the context of going to court to give evidence—might be quite unrelated to such considerations. They might have nothing to do with the possibility of terrible consequences. It might be that the individual has persuaded himself that he will be struck by lightning if he walks across the street to the courthouse, even though it is broad daylight. That might lead us to the question of that person being too ill to attend; perhaps we shall get him in by another clause. Assuming that he is not certifiably ill, that is an unreasonable fear and one that the court should not countenance and use as an excuse for allowing that evidence in. Another example, which I gave earlier, is fear that by doing one's duty and giving evidence, one might lose out financially, not as a result of action by the defendant or another member of the public, but in the ordinary course of events, through having to take a day off work. That is a real fear—lots of people have it. They do so for jury service, which is one of the reasons why people have avoided putting their names on the electoral register, as hon. Members will know. Constituents tell us that they do not want to be registered because they do not want to be called up for jury service.

Will the hon. Gentleman answer two questions? First, does he accept that there is inherent difficulty in legislating for every circumstance of the human experience and trying to prescribe too tightly what is a reasonable fear? Secondly, does he accept the proposition that if we were to accept the amendment, it would lead to a situation in which, in relation to financial loss—no matter how severe or how traumatising for the individual; not just a day's pay, for example, but the livelihood and entire way of life of a corner shop owner, as in the example given by my hon. Friend the Member for Wellingborough—the courts would be able to hold that Parliament had not intended that circumstance to be covered.

I do not accept the proposition, for this reason: it is not necessary. There are two approaches. I accept that removing ''or of financial loss'', as the amendment proposes, could have that consequence. However, that is unlikely, as a court would have no difficulty in deciding what constitutes fear. When discussing it with the Minister, I find that part of the problem is that the Government's drafting has tried to be too prescriptive. Had clause 100(3) simply said, ''for the purposes of subsection (2)(e) 'fear' is to be widely construed'' full stop, the problem would probably go away.

It would get worse.

No, I do not think that it would. The attempt at definition immediately creates problems. The words ''includes fear . . . of financial loss.'' are not necessary.

It says ''(for example)''.

The phrase

''and (for example) . . . financial loss''

is not necessary. I wish the Minister would reconsider the clause and take out the reference to financial loss. In fact, subsection (3) could be removed entirely and the courts would not have the least problem in interpreting what they have to do or the Minister's intentions. A real fear would be a threat such as ''The entire estate will boycott your shop if you give evidence in this case.'' Losing a day's wages or a contract, however important, does not constitute real fear.

As I say, there are two approaches. One is to try an extra definition to make the point clear, which I have not attempted to do as I merely wanted to highlight the issue. The other is to remove most of subsection (3) and tell the court that ''fear is to be widely construed'' full stop. A judge or lawyer reading that will immediately realise that it goes further than fear of immediate physical consequences. I fear, if I may use the word, that in trying to provide a definition the Minister has gone too far. I will not press the amendment to the vote, but I urge him to discuss the matter with parliamentary draftsmen to see whether something better cannot be arrived at on Report. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 100 ordered to stand part of the Bill.