Clause 30 - Hearing evidence through television links
Crime (International Co-operation) Bill [Lords]
3:00 pm
Mr James Paice (South East Cambridgeshire, Conservative)
I beg to move amendment No. 86A, in
clause 30, page 17, line 25, leave out 'appears to'.
Mr Alan Hurst (Braintree, Labour)
With this it will be convenient to discuss the following:
Amendment No. 44, in
clause 30, page 17, line 25, after 'State' insert 'knows'.
Amendment No. 45, in
clause 30, page 17, line 26, at end insert—
'(2A) A request under subsection (1) must—
(a) specify the reason why it is not desirable or possible for the witness or expert to attend in person;
(b) give the name of the judicial authority and the names of the persons who will be conducting the hearing; and
(c) state that the witness is willing to give evidence by television link in the proceedings before that court.'.
Amendment No. 46, in
clause 30, page 17, line 27, leave out
'Unless he considers it inappropriate to do so'.
Amendment No. 51, in
schedule 2, page 65, line 5, leave out 'appears to him to' and insert 'he is satisfied will'.
Mr James Paice (South East Cambridgeshire, Conservative)
I am interested in the way that this afternoon's proceedings are going. We seem to have lost the massed ranks on the Government Benches. They might be sitting by the telephone waiting for a call—on such occasions hope springs eternal. However, there will be disappointments. [Interruption.] The Whip is laughing as if he knows the inner secrets of what is going on. Whips always pretend to do that, whether they know or not. If the Minister is called away suddenly during the course of the afternoon, we shall understand why—much as I should like to think it would be because he realised he had lost the argument, it might not be.
Clause 30 relates to the hearing of witnesses in the UK using television links to a court in another country. Amendments Nos. 86A and 44 do stand separately and must run together. Amendment No. 51 is the same and applies to schedule 2. We are concerned about the vagueness of the statement in clause 30(2), which refers to
''the authority in that country which appears to the Secretary of State to have the function of making requests of the kind to which this section applies.''
The phrase ''which appears to'' is incredibly vague. Bearing in mind that we are talking about countries with which we have signed some sort of convention, we should know which authorities have the function of making requests. I tabled the amendment to extract from the Minister why that subsection has to be so vague. Will the Government contemplate granting the power to hear witnesses in UK courts through television links to a court overseas if the Secretary of State is not absolutely satisfied that the request comes from a body that has the right power? The phrase ''which appears to'' is vague and, given that the geography of the world keeps changing and countries break up as well as join together, it is essential that we know which authority can make such a request.
Amendment No. 45 would insert a new subsection in clause 30. It supports what I have been saying in so far as it would ensure that the Secretary of State is
properly assured of why the request is being made. It specifically states that the request should
''(a) specify the reason why it is not desirable or possible for the witness or the expert to attend in person;
(b) give the name of the . . . authority and the names of the persons who will be conducting the hearing; and
(c) state that the witness is willing to give evidence by television link''
in such proceedings. The amendment should be accepted not only because it would support the obligation behind the request, but because it has been taken from the text of the second additional protocol to article 10 of the mutual legal assistance convention—those words appear in paragraph 8 on page 7. If we have already signed up to that convention—and we have, which is why we are passing this Bill—I do not understand why that text cannot be in the Bill.
The amendment is reasonable. The Minister—I was going to say the Secretary of State, but I should not jump to conclusions—will probably say that it is not necessary because all that information will be given in the request anyway. If that is the case, it enhances my argument that it should be included in the Bill.
When we consider proposed legislation, we must bear in mind not only the situation today, but what things might be like while it is still current. It is important to consider authorities in other countries, for we do not know what might happen to the office of Secretary of State in years to come. It is important that the Secretary of State should be given the authority, so that if the request does not contain all the information he needs, he can refuse to accede to it, even if, as the Minister will no doubt assure me, he can refuse to accede to it anyway.
Amendment No. 46 is a probing amendment. Subsection (3) starts with a vague piece of phraseology:
''Unless he considers it inappropriate to do so the Secretary of State must by notice in writing nominate a court''.
What could be construed as inappropriate? There seems to be a change in drafting jargon running through much of the Bill. On various occasions I and other hon. Members have questioned the vagueness of some aspects of the Bill; this is another example. What does it mean? What checks and balances are there on the Secretary of State as to whether something is inappropriate? What if he believed, for example, that the authority in the country that made the request was not the proper authority? What if he did not agree with the Government of that country? Is that inappropriate enough for him to nominate the court in writing? It is odd that such a vague term is used.
The amendment does not require much introduction; it is a challenge to what on earth the Government mean by placing something so vague in the Bill. What kinds of example did they think about in which the Secretary of State might consider things to be inappropriate? The group of amendments covers various issues surrounding the role of the Secretary of State in making decisions on a request to hear witnesses in the UK through TV links. All the amendments are important. I look forward to
hearing the Minister's response to various issues that bear further investigation.
Mr Bob Ainsworth (Parliamentary Under-Secretary, Home Office; Coventry North East, Labour)
Whether or not anyone knows what has happened in the reshuffle, the hon. Member for South-East Cambridgeshire should reflect on the fact that I have failed to resist two resistable amendments. Perhaps I am already aware of my demise and have become rather demob happy—[Laughter.] He should bear that in mind.
Mr Bob Ainsworth (Parliamentary Under-Secretary, Home Office; Coventry North East, Labour)
There are too few of you here.
The amendments relate to requests received by the UK to provide for TV evidence at the request of an overseas authority. Amendments Nos. 86A and 44 relate to authorities that may request assistance via a TV link. I shall explain which authorities will have the function of making requests, and I hope that that will deal with the hon. Gentleman's concerns.
The purpose of the drafting of subsection (2) is to give flexibility to ensure that the UK is in a position to consider all requests made by legitimate overseas authorities, however those are defined in different national legislation, while retaining the final discretion for the Secretary of State about whether to execute the request in a particular case. I understand what the hon. Gentleman says. There is an issue to do with flexibility and checks and balances. We are not talking about extradition or intrusive surveillance: we are talking about someone giving evidence via television link. I hope that the hon. Gentleman will bear that in mind. To what degree do we want to tie down in statute the flexibility in this particular case? It would be useful to maintain that flexibility.
What are these authorities? In the case of the signatories to the 1959 Council of Europe convention on mutual legal assistance, which forms the basis of MLAC, judicial authorities are defined by each state. Therefore, where we are dealing with another Council of Europe country, the appropriate authority will be set out in its Council of Europe declaration.
However, in the case of both Council of Europe and non-Council of Europe states, the authority will be a court, a prosecuting authority or other authority with a role in the investigation and prosecution of crimes and in mutual legal assistance. In some cases, a central authority might be responsible for making requests of this nature: the Home Office may perform that function in certain regards, and there might be a similar organisation in the requesting country that handles such cases on its behalf. The Secretary of State's discretion regarding execution provides a safeguard against requests from inappropriate authorities.
Amendment No. 45 would require incoming requests from overseas authorities to include three pieces of information, which are specified. The first two are requirements of article 10 of MLAC. However, their inclusion in the Bill is unnecessary. The drafting gives the Secretary of State the ability to refuse to nominate a court for a hearing if all the requirements are not met. He will make his decision
with the MLAC requirements in mind. The matters listed in the amendment are not the only pieces of information that must be included in a request for a hearing by video link. All requests, including those for a hearing by video link, must include information referred to in article 14 of the European mutual assistance convention. Those requirements are not listed in the 1990 Act or the Bill. The decision not to list the additional requirements here is consistent with that approach.
It was suggested in another place that inclusion of these matters in the Bill would help to ensure that witnesses were fairly treated and that countries did not abuse the opportunity to take evidence by video link. However, these requirements are not about the protection of witnesses: they are mainly practical matters to ensure that administrative arrangements for the hearing can be made. Protection of witnesses' rights is adequately provided for, particularly in schedule 2.
To impose the third proposed condition—that a witness is willing to give evidence—would be contrary to the provisions of MLAC, so we cannot agree to its inclusion. It is only possible to impose such a condition in relation to hearing accused persons if member states choose, in accordance with article 10(9), to extend the provision to hearing accused persons. The Government are not proposing to enable accused persons to be heard in this way.
Subsection (3) gives the Secretary of State discretion not to take forward a request. Amendment No. 46 would remove that discretion. The provision will enable the Secretary of State not to comply with a request when that request would contravene national law. It retains an overall discretion for the Secretary of State in all cases, while not being unduly prescriptive in the conditions that it imposes on overseas requests. That would enable the Secretary of State to refuse requests if they do not contain the necessary information.
We consider that amendment No. 51 is a drafting amendment, and that the current drafting is appropriate. It would require the Secretary of State to be satisfied that the overseas authority has the specified function, which reflects an earlier amendment to clause 30. In the context of schedule 2, the Government consider that the current drafting has the advantage of consistency with other clauses and that the test that an authority seems to be appropriate provides sufficient safeguards. It may be that different authorities are involved in making arrangements for the protection of witnesses rather than making the request for the hearing. Dedicated witness protection teams or the police might be involved in the requesting country, for example, in the request that is being made.
I understand the hon. Gentleman's argument, but we are not surrendering people. We are obliging them to give evidence by video link, if abroad. There are so many variables. We are not necessarily talking about
convention countries only, but any country. There is a desire to maintain flexibility and we are concerned about the degree to which we want to tie down the Secretary of State and Executive to respond appropriately and be able to block inappropriate responses. I do not believe that the safeguards for which the hon. Gentleman is calling are necessary. The schedule provides good and comprehensive safeguards.
Mr James Paice (South East Cambridgeshire, Conservative)
Having heard the Minister's opening remarks, I hope sincerely that they were made in jest and that we are not about to see his demise. If we are, it shows what desperate straits the Government are in. The hon. Gentleman has gained huge respect from this side of the House for his ability and diligence. If he remains in the Government, as I sincerely hope he does, it should be at a higher rather than a lower level—well, there cannot be a lower level. [Laughter.] I do not know why members of the Committee are laughing. I have been there. I know exactly the low level that the Minister occupies, because I used to occupy it. I am not beating around the bush, even though when an hon. Member does not have such a job, he sits on the Back Benches praying to goodness that perhaps the phone will ring. I am fully cognisant of the reality of the situation.
As for amendments Nos. 86A and 44, I understand the Minister's reason for wanting flexibility. Of course, he is right. We are not discussing matters as heavy and intrusive as extradition. In some ways, however, his closing remark underlined the issues involved. He might want to reflect on it. He said that the issue applies not only to convention countries, but to any country. On one hand, that requires flexibility but, on the other, it would increase the possibility of a request coming from an authority that was not the right authority. I am slightly more worried about the phrase ''appears to''. It is easy to imagine an authority masquerading as the right authority, even if it were not. It may be following a constitutional change. There may have been a coup, for example, in a particular country.
I come now to amendment No. 45. I take the Minister's point that the protection of witnesses is slightly different from paragraphs (a) and (b) in the amendment. Nevertheless, all paragraphs in the amendment are important. If the amendment would contravene the convention I can understand why the Minister would wish to reject it, but as proposed paragraphs (a) and (b) come within the convention, I am less certain about the wisdom of resisting it.
On amendment No. 46, the Minister again pleaded the need for flexibility. I understand his arguments; we are talking about a matter of judgment, relating to checks and balances and flexibility. I hope that, in future, no Secretary of State errs in the wrong direction, but on this occasion I am happy to accept that there is a need for flexibility. However, it has been useful to challenge the Minister on some of the more vague phrases that are creeping into the Bill. In light of his remarks, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Mr David Heath (Somerton and Frome, Liberal Democrat)
I beg to move amendment No. 137, in
clause 30, page 17, line 28, after 'court', insert 'or other place'.
Mr Alan Hurst (Braintree, Labour)
With this it will be convenient to discuss the following:
Amendment No. 47, in
clause 30, page 17, line 29, at end insert—
'(3A) The provisions of subsections (4) and (5) shall be drawn to the attentions of any person giving evidence by virtue of this section before he gives evidence.'.
Amendment No. 48, in
clause 30, page 17, line 32, at end insert
'(unless the conduct in question would not constitute contempt of the court in the country outside the United Kingdom before which the proceedings in questions are being carried on)'.
Amendment No. 50, in
schedule 2, page 64, line 30, at end insert—
'(3) The nominated court must be notified that the witness is willingly giving evidence by television link.'
Amendment No. 54, in
schedule 2, page 65, line 38, at end insert—
'(16A) The nominated court shall intervene where it considers it necessary to do so in order to safeguard the rights of the witness.'.
Amendment No. 139, in
clause 31, page 18, line 22, after 'court', insert 'or other place'.
Amendment No. 141, in
schedule 2, page 65, line 8, at end insert
'to ensure that proceedings are understood by
(a) the witness or witnesses; and
(b) the nominated court.'.
Amendment No. 142, in
schedule 2, page 66, line 2, at end insert
'to ensure that proceedings are understood by
(a) the witness or witnesses; and
(b) the nominated court.'.
Mr David Heath (Somerton and Frome, Liberal Democrat)
There are two pairs of amendments in our name in the group: Nos. 137 and 139, which would add ''or other place''; and amendments Nos. 141 and 142, which deal with interpreters.
Amendments Nos. 137 and 139 are, essentially, probing amendments; I accept straight away that they are not proper amendments that can pass into law. I am seeking from the Minister a definition of what comprises a court, in the context of the clause. Is a court any place at which a presiding judicial officer—either a magistrate or a judge—sits, or does it have the geographical sense of a courthouse? I ask because I can conceive of many circumstances in which a convening court will not have the facilities for television links; it might not even have telephone links, although that is less likely.
Also, there may be circumstances in which it is not possible for a witness to be present in a courthouse equipped with television links, and it might then be better to make arrangements from another place. I had two examples in mind. The first was that of very remote communities that might have access to a satellite television studio, but not to a courthouse that is so equipped, and under those circumstances, for the convenience of all concerned, it would be better for
a court to convene in the television studio. The other circumstance is when a witness cannot be moved out of a hospital; it might be more appropriate for a television link to be brought to the witness than for the witness to be brought to a television link. It may be that the Bill already allows for that, and that a court is defined as anywhere that—
The Chairman's attention having been called to the fact that seven members were not present, he suspended the proceedings; and other Members having come into the room and seven Members being present, the proceedings were resumed.
Mr David Heath (Somerton and Frome, Liberal Democrat)
Thank you, Mr. Hurst. I am glad that we are now quorate again, and that the Committee members on the Government Benches who were assiduously sitting by their phones have returned to the fold in order to concentrate on the proceedings.
It is unclear to me whether the court is the institution or the locality in this instance. The Minister may be able to help me on that, and if there is a deficiency here, we might be able to correct it—although, as I have said, probably not through the words that I have proposed.
The other point that I want to make relates to amendments Nos. 141 and 142, which amend Schedule 2. I wish to identify what precisely the Government intend to provide in terms of interpretation. Uncharacteristically, Lord Bassam of Brighton seemed to have got himself into a bit of a muddle in another place on this subject. There is a need for translation facilities, but there is a need for that at two points. First, it is essential that the witness can understand the proceedings of the court to which his evidence is being transmitted; otherwise, he cannot be adequately protected or effectively give evidence. Therefore, interpretation facilities are necessary that allow that witness to understand the proceedings. However, it is also essential that the presiding judge in the United Kingdom court is able to understand the proceedings—what is going on at the other end of the television or telephone link and what the witness is saying—so that they can provide the protection under the law that is envisaged.
Therefore, there are two points of interpretation. Lord Bassam first indicated that that would be available, but he then spoiled that by suggesting that he would expect the relevant proceedings to take place in English, which is surprising under the circumstances, because a Portuguese court that is interviewing a Portuguese witness who happens to be on the Isle of Orkney will be very unlikely to take the view that the English language is the most appropriate medium in which to conduct its business. There will be a further complication if the witness in the Portuguese court is a monoglot Serbo-Croat: the proceedings from—let us say—Lisbon are in Portuguese, the witness gives their evidence in Serbo-Croat, and a poor English or Scots judge has to try to understand what is happening because, although they have no direct interest in the proceedings, they are, effectively,
the umpire whose role is to ensure that proceedings are in good order.
I am seeking to clarify the muddle that we got into in another place and to ensure that those two levels of interpretation will be available. Sometimes both levels will not be required because only two languages will be involved; but at other times three languages will be involved, and in both instances interpretation facilities will be necessary if everyone is to have the safety of knowing that their proceedings are understood. That is why I tabled these amendments.
Mr Nick Hawkins (Surrey Heath, Conservative)
I shall be brief. Some Conservative Committee members' amendments—Nos. 47, 48, 50 and 54—have been grouped with those of the hon. Member for Somerton and Frome.
There is one matter that I should correct for the Committee. There is a typographical error in amendment No. 47, which I am sure is our fault: it states ''attentions'', whereas that word should be ''attention''—that is only one letter, but I thought I should put it on the record.
In amendment No. 47, we are suggesting that it would be sensible to make it clear in the Bill that witnesses are to have the provisions of this law explained to them in advance. I hope that the Minister will not resist the spirit of our amendment, although he may not be able to accept the wording.
I very much echo the comments of the hon. Member for Somerton and Frome on the confusion that occurred in another place. I shall not bore the Committee by repeating what was said there, as he admirably summarised that. Earlier I referred to this from a sedentary position—sotto voce—as a ''Bassam special'', which is the phrase used by Baroness Anelay of St. Johns. I agree with the hon. Gentleman that there was a great deal of confusion on the Government side in another place. One only has to read the Hansard of the debate to see that.
Amendment No. 48 would insert a new condition on whether conduct would be in contempt of court in the country outside the UK. We think that the rest of clause 30 should be valid only if the conduct was in contempt of court in the country outside the UK. I appreciate that in another place it was said that British courts could not judge on every occasion whether something was in contempt of court in another country. Nevertheless, we thought it worth having a debate to find out whether the Minister had had any further reflections since the debate in another place.
Amendments Nos. 50 and 54 would amend schedule 2, and are related to the same matters. On amendment No. 50, we feel strongly that it is vital to include in the Bill a requirement that the nominated court is notified that the witness is willingly giving evidence. There was an important debate in another place at columns GC112 to 114. I point in particular to what Baroness Anelay said at column GC114. I know that the Minister is aware of what was said, so I shall
not take up Committee time by quoting extensively from that debate.
Amendment No. 54 would add a new subsection (16A), which contains an overarching witness protection provision, to part 2 of schedule 2. It is sensible to include that in the Bill. The words of proposed new subsection (16A) make it clear beyond doubt that the witness is to have that protection. I cannot see any good reason why the Minister would resist that. I hope that the Minister stands up and says, ''Well, all right then, we'll accept amendment No. 54.'' He might do so because he is demob happy or for any other reason. I also agree with the amendments tabled by the hon. Member for Somerton and Frome. They are sensible, and I need not go through them again.
I hope that the Minister will consider the matters that we have raised. We have tried to be sensible and constructive; we genuinely think the amendments will improve the Bill and provide clarity about the protection of witnesses. We think that that is important, and I know that the Minister does too.
Mr Bob Ainsworth (Parliamentary Under-Secretary, Home Office; Coventry North East, Labour)
The hon. Gentleman will forgive me if I do not deal with the amendments in the order in which they have been listed.
Amendment No. 47 would introduce a statutory requirement in relation to contempt of court and perjury to inform witnesses of their rights and obligations under clause 30. However, schedule 2 contains sufficient safeguards for the rights of witnesses, so the amendment is unnecessary. Witnesses who provide evidence in this way will be subject to the same rules of contempt of court and perjury as would apply if they were testifying in a normal, domestic court proceeding. They are also protected by any additional rights and privileges that they would have if they had been physically present at the overseas proceedings. They are therefore doubly protected, by the proceedings, protections and rules of court of our own country and those of overseas jurisdictions.
Amendment No. 48 would limit the circumstances in which a witness summoned to give evidence before a UK court would be deemed to be in contempt of court. An undue burden would be placed on the domestic court if it had to establish whether an act by a witness in its presence, which would be contempt of court in the UK, would also be contempt of court in the overseas country. That would require detailed knowledge of many other legal systems, which is impractical. The clause is designed to protect the domestic court system, so that if a witness committed contempt of our court, action could be taken against that person.
Amendment No. 50 would restrict the power of the court to secure the attendance of witnesses to circumstances in which the witness is willing to attend. That is unacceptable for the reasons I gave on amendment No. 45. The UK cannot restrict the application of the provisions to circumstances in which witnesses are willing to give evidence without falling foul of article 10 of the MLAC. That applies to all witnesses, not just those who are willing. It is appropriate for there to be a power to compel
witnesses to attend. We will achieve that by issuing a summons. That would be done if they were required to appear as a witness in a domestic criminal proceeding.
The hon. Gentleman made a special plea for amendment No. 54. That would replicate the provision in part 1 of the schedule—on the intervention of the court to safeguard the rights of witnesses in television link hearings—in part 2, which deals with telephone hearings. The Government do not think that that is necessary or appropriate. It could have a potentially confusing effect. Under clause 30 and part 1 of the schedule, which governs television links, witnesses may be required to attend. In fact, they are compellable, subject to the privileges referred to in paragraph (9). Clause 31 and part 2 of the schedule, on the other hand, offer no more than a facility to give evidence by telephone. There is no power to secure the attendance of a witness if they are not willing to attend, and they cannot be required to give evidence unwillingly. The two proceedings are quite different. To add an equivalent to paragraph (5) to part 3 of the schedule would cause confusion about the position of the witness before the court.
On amendments Nos. 137 and 138 tabled by the hon. Member for Somerton and Frome, there is no need for the Secretary of State to nominate any place other than a court to hear witnesses by television or telephone link—both kinds of hearing would be conducted by a court. If we received a request to arrange such hearings on behalf of overseas authorities, we would generally use magistrates courts. More than 150 magistrates courts have been set up to receive remand TV links; those currently only operate between courts and prisons for use in remand hearings. However, the technology is in place, and linking with overseas courts would be technically straightforward. The witness would be in a UK court and the camera would be linked to the court in the UK.
All such hearings must be conducted before a court. Generally, the court nominated by the Secretary of State would be the one most conveniently located for the witness that has the necessary facilities. Whether the link was set up in the usual courtroom or outside it is irrelevant. The court would be conducting the hearing, so it would be nominated. As for remote communities and potential problems, I understand what the hon. Gentleman is saying. The court might nominate facilities outside its existing court buildings, but they would be designated as part of the court. On a Scottish island, for example, the court could designate a particular building on the island, which would become part of the court and be covered for convenience. There would be no need for any amendment.
I emphasise that interpretation would always be provided in respect of both the judicial authority and the witness. Let me say to the hon. Gentleman that amendments Nos. 141 and 142 are not necessary. It is not that we do not agree with him, and I hope that I can reassure him that they are not necessary.
It is likely to be a frequent scenario that one party—the witness or the domestic judicial authority—does not understand the language in which the overseas
proceedings are conducted. It is superfluous to refer to the court and the witness explicitly when making reference to rules of court. We may receive a request from Poland where the witness is Polish and would understand the proceedings. However, the court here would not understand them and therefore could not fulfil its obligations under clauses 30 and 31 and schedule 2, which impose responsibilities on the nominating court to protect the rights of the witness and the fundamental principles of domestic law. It needs to understand the proceedings to fulfil those responsibilities, so interpretation would have to be provided.
Let us suppose that a witness did not speak English, but we were conducting proceedings with the United States of America, so the court here would be able to understand them. If the witness did not understand the language of the proceedings in the requesting country, the court would not be serving the interests of justice or protecting the rights of the witness if it did not provide interpretation for him. Therefore, interpretation will always be provided if it is needed by the witness or the court. It must always be available. It is not necessary for the proceedings to take place in English. In the case of the Polish witness and the Polish jurisdiction, they could take place in Poland, but the court would need an English interpretation. I hope that I have reassured the hon. Gentleman that interpretation will always be provided. It is a requirement to ensure that justice is done. We do not disagree with the amendments, but they are not necessary.
Mr David Heath (Somerton and Frome, Liberal Democrat)
I thank the Minister for clearing up the confusion that was created by rather contradictory statements made by Lord Bassam in another place. The Minister has said explicitly today that it is necessary for both the witness and the court to understand the proceedings and that interpretation will be available to achieve that. That is the assurance that I sought by tabling my amendments and I am entirely content with it. I am also grateful to the Minister for his explanation that a court is the place where the court chooses to constitute itself, which need not be solely in a courthouse, and that there is provision, where necessary, for the court to move outside the premises of the courthouse and constitute its court elsewhere for the instances that I gave.
The hon. Gentleman raised one other issue in passing, which is that of a prisoner not being brought into court, but being kept in prison. I presume that, under those circumstances, it would be necessary to constitute the court in the prison, rather than to use the link from the prison to the court and then for the court to communicate with the overseas court. That is perhaps a conundrum too far.
Mr Bob Ainsworth (Parliamentary Under-Secretary, Home Office; Coventry North East, Labour)
It would seem to me that that is a possibility, in theory. There must already be provisions, because there is coverage on remand, and if the court chose to constitute itself in a prison, the same situation would apply. If that is not the case, I shall come back to the hon. Gentleman, but that would be common sense. If the court can extend itself beyond its boundaries to cover remote communities, it
can probably do the same to cover people incarcerated in prison.
Mr David Heath (Somerton and Frome, Liberal Democrat)
That is certainly the common-sense interpretation. I am grateful to the Minister, and on the basis of the assurances that he has been happy to give me, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Mr David Heath (Somerton and Frome, Liberal Democrat)
I beg to move amendment No. 138, in
clause 30, page 18, line 3, at end insert
'but may subsequently be used as evidence, if admissible, in proceedings in the United Kingdom.'.
Mr Alan Hurst (Braintree, Labour)
With this it will be convenient to discuss amendment No. 140, in
clause 31, page 18, line 39, at end insert
'but may subsequently be used as evidence, if admissible, in proceedings in the United Kingdom.'.
Mr David Heath (Somerton and Frome, Liberal Democrat)
This is another probing amendment. There is a clear provision in subsection (7), which says:
''Subject to subsections (4) and (5) and the provisions of that Schedule, evidence given pursuant to this section is not to be treated for any purpose as evidence given in proceedings in the United Kingdom.''
I understand that the evidence is not before a British court; it is administered partly by it, but it is not evidence in proceedings in the United Kingdom. My small concern is whether that precludes evidence given under those circumstances from being used subsequently in proceedings in a United Kingdom court. It seems that that might not be the intention.
Let me give an instance. Supposing the witness in a case in a foreign country looked up suddenly, halfway through giving evidence, which is sworn, is before a district judge, and is recorded, and said, ''Oh, by the way, I killed Mrs. Jones last week.'' It would be absurd for that evidence not to be brought up in subsequent British proceedings in court—but, of course, only if admissible; and that is a big question.
Mr Stephen Hesford (Wirral West, Labour)
But that is the point—if it is admissible. If it were not, what the hon. Gentleman says would have no point.
Mr David Heath (Somerton and Frome, Liberal Democrat)
I am trying to discover whether, all other things being equal, and there being no reason to suppose that what was said was not admissible because of any other consideration in UK law, the evidence would be admissible and would not be precluded by the clause. I would like some clarity on that. The hon. Gentleman will recall our long debates on hearsay evidence in connection with the Criminal Justice Bill. The clause refers to privileged, rather high-powered hearsay evidence; it is hearsay in the hearing of a court, a district judge and a recorder who is providing a record of the proceedings to the satisfaction of the United Kingdom courts. The evidence is really classy hearsay, in the context of what was envisaged under the Criminal Justice Bill.
Mr Stephen Hesford (Wirral West, Labour)
I am not sure where our discussion is going, but I think that the hon.
Gentleman is wrong; we are not talking about hearsay. If it came from the defendant's mouth, it is direct evidence against him, not hearsay.
Mr David Heath (Somerton and Frome, Liberal Democrat)
The hon. Gentleman has the advantage of me in being a lawyer—
Mr David Heath (Somerton and Frome, Liberal Democrat)
If the hon. Lady will forgive me, I shall continue.
The evidence is not coming directly from the witness's mouth, because we are not talking about proceedings in a UK court. That witness may not give the same evidence in proceedings before a UK court. As what is said will be brought before the court as a result of the record of the proceedings, which are not before a UK court and have been witnessed by a district judge and the court authorities, it constitutes hearsay evidence under the interpretation normally accorded it. It is not direct evidence because it has not been given in the context of the proceedings of a UK court. Unless I have completely misdirected myself, it seems that, all things considered and provided that the evidence is not prevented from being admissible in other circumstances and is available to a British court as a record of proceedings, it should be potentially used in proceedings against the witness or anyone else. Despite the Minister's attempts to divert me from such a course, I wonder whether he believes that such action is possible and whether subsection (7) would prevent it from happening. I might be making a tortuous point, but there is the potential for such action to happen. I would hate it for us to have got it wrong.
Mr James Paice (South East Cambridgeshire, Conservative)
I support the hon. Gentleman's probing amendments. We are on new territory and discussing the giving of evidence by telephone, which is not admissible in British courts. The hon. Gentleman was right to want to explore a range of issues with the Government. It is clear from clause 31(4) that the giving of the evidence will be taking place physically in a British court, but that does not mean that it is taking place within British court proceedings, and under their constraints. Such matters need to be more clearly understood. The Minister must explain them.
Secondly, although the giving of evidence by telephone is not permitted in British court proceedings—although I consider that it is perfectly correct—what the witness says may be heard other than by the telephone. Court officials will be present during the proceedings who hear literally rather than by telephone. With respect to the hon. Member for Wirral, West (Stephen Hesford), the matter is more confusing than he suggested when he referred to admissibility. We know that telephone evidence is not admissible in this country. If a person listened to evidence being given by telephone, it is not admissible. However, if a court official was physically sitting at the hearing, heard the witness give evidence and made the admission to which the hon. Member for Somerton and Frome referred, it would not have been heard over the telephone and that should be taken into account. The hon. Gentleman has put his finger on an important point, and I am interested in how the Minister will wriggle out of it.
Mr Bob Ainsworth (Parliamentary Under-Secretary, Home Office; Coventry North East, Labour)
The Minister will do his best. As it is Thursday afternoon, I cannot resist sharing something with the Committee. I have a note that says, ''Resist. These are new amendments. We have no idea what their purpose is. They do not make sense as drafted. You might wish to offer to write to the hon. Gentleman.''
I have a couple of comments to make about what has been said. The Committee must bear in mind that the telephone evidence was given willingly and that there was no compulsion on the individual to give it. That is different from video link evidence. I say to the hon. Member for South-East Cambridgeshire that we think that its use in domestic proceedings is precluded. We may have to seek the evidence ourselves from the overseas authority, in which case it could be used. However, the point that the hon. Gentleman makes is valid: it may have been heard, so it might be admissible. That is our view at present.
I will do what my note advises me to do, which is to get some consideration on it and respond to the Committee in writing.
Mr James Paice (South East Cambridgeshire, Conservative)
I am grateful to the Minister for giving way, and for saying that. However, he should reflect on what he said earlier when he deliberates on this matter. Evidence that is given over the telephone is not admissible in British courts. Even if we get evidence from another country, it could not be used in a British court because it would have been gained over the telephone—but he seemed to suggest that it could be used.
Mr Bob Ainsworth (Parliamentary Under-Secretary, Home Office; Coventry North East, Labour)
No, I was making a point about there being two different types of evidence. I was also seeking to allude to the fact that the person was not obliged to give the evidence by telephone: if he was overheard, and rendered himself liable in a British court, more fool he. We must clarify the position, because this is an important point and we need to understand exactly what we are doing.
Mr David Heath (Somerton and Frome, Liberal Democrat)
I agree with the hon. Member for South-East Cambridgeshire that evidence that is given by telephone to an overseas court cannot come back here and be admissible. However, under schedule 2(10), the rules of court
''must make provision—
(a) for the drawing up of a record of the hearing''.
Therefore, this is not a question of what some court official may remember. A court official will be producing a record of the hearing. Will that record subsequently be available for use in a British court? The Minister's initial response suggested that that was precluded, and I am seeking to ensure that it is not, because it might be a valuable piece of evidence.
Mr Bob Ainsworth (Parliamentary Under-Secretary, Home Office; Coventry North East, Labour)
The hon. Gentleman tabled his amendments yesterday, and they address an interesting area, which we need to examine. I will write to the Committee before Report so that it knows exactly what the situation is.
Mr David Heath (Somerton and Frome, Liberal Democrat)
That was extremely helpful. I am not trying to catch anybody out. The thought that this might be a problem occurred to me only two days ago.
I am sorry if the Minister's officials were baffled when I first tabled the amendment.
We have had a useful debate, and the Minister now understands my point and accepts that it has some validity, even if I am not right. I look forward to reading his letter, and I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 30 ordered to stand part of the Bill.