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Clause 69 - Criminal Procedure Rules

Courts Bill [Lords] – in a Public Bill Committee at 10:00 am on 8th July 2003.

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Question proposed, That the clause stand part of the Bill.

Photo of David Kidney David Kidney Labour, Stafford

It is a pleasure to serve on a Committee under your watchful eye, Mr. O'Brien, and your firm but fair manner of dealing with proceedings.

I should like to talk about two points about which I and other commentators have been concerned in the past. The first is about the trial of young persons charged with very serious offences. The second is whether there is a possibility of laying in children's proceedings when a criminal trial is taking place at the same time. Both points are relevant to the clause, which deals with a court's powers to make rules in criminal proceedings. They are also relevant to clauses 75 and 76, which deal with the similar power to make rules relating to family procedure rules.

My first concern is about prosecuting children for serious offences. People may recall from the trial of the killers of Jamie Bulger and the subsequent referral to the European Court of Human Rights the nature of proceedings in a Crown court for very young persons who are accused of serious offences. I am not suggesting that they are given an easy ride. According to the terms of our justice system, which assumes that people are innocent until proven guilty, people who appear in court should be spared

''avoidable intimidation, humiliation or distress.''

I take those words from the overriding principle contained in the Lord Chief Justice's practice direction of 16 February 2000, which was the result of the consideration of our Crown court procedures by the European Court of Human Rights.

Hon. Members may recall some of the directions that the Lord Chief Justice set out: where possible, the defendant should sit at the same level as the rest of the court; defendants should be free to sit with members of their family; proceedings should be explained to defendants as they go along; there should be frequent and regular breaks; robes and wigs should not be worn unless the defendant asks for them to be worn; restrictions should be imposed on the number of people attending a trial; and, although facilities for reporting the trial must be provided, consideration should be given to restricting the number of reporters present in the courtroom. Those directions were given in an attempt to ensure that there is a fair trial.

Concerns are often expressed that the great panoply of the Crown court venue would have difficulty fitting in with those directions. On many occasions, the youth court might be a more defendant-friendly venue for such trials. It might be more appropriate for the Crown court to agree to sit in the youth court.

Photo of Mr Gareth Thomas Mr Gareth Thomas Labour, Clwyd West

I am interested to hear my hon. Friend developing his points, speaking as he does from his experience as a solicitor. On the question of court apparel, he will be aware that that is the subject of some controversy, not only within the legal profession but society at large. Does he take the view that it would be appropriate not for the profession so much but for the Government to take a view as to the appropriateness of the ancient apparel that the profession requires barristers to wear?

Photo of Mr Bill O'Brien Mr Bill O'Brien Labour, Normanton

May I draw hon. Members attention to the fact that we are now discussing ''Criminal Procedure Rules''? I have not heard them mentioned yet. Will the hon. Gentleman address the clause?

Photo of David Kidney David Kidney Labour, Stafford

Thank you, Mr. O'Brien. You have saved me from going down an avenue that I do not wish to go down even though my hon. Friend requested me to do so.

At present, for serious charges against very young defendants, the direction of the Lord Chief Justice is the guiding rule for our courts. When the criminal procedure rule committee comes to make its rules, it would like to examine the Lord Chief Justice's practice direction and consider whether it should go further than that and make rules that embed those principles in the system. It wants to go a step further and consider saying that the youth court is, more often than not, a better venue than a Crown court building for the trials of these particular cases. I note that section 78 of the Supreme Court Act 1981 states that a Crown court may sit at any other place in England and Wales. Clearly, that includes sitting in a youth court. Clause 30 proposes that magistrates courts can sit in places other than the usual court, so the legislative network exists to allow trials to take place in the most appropriate venue for a fair outcome to the trial.

I am also concerned about those tragic cases in which young children are seriously injured while in the care of their parents as a result of physical and violent assault, sexual assault or a course of behaviour that affects them mentally rather than physically. In such cases, the criminal authorities often take the view that there should be a criminal prosecution of the parents for the alleged conduct. At the same time, the local authority will wish to protect the children, so it might take them away from the parents and begin care proceedings in the family courts—usually the local magistrates court sitting as a family court.

My hon. Friend the Member for Clwyd, West (Gareth Thomas) said that I was a solicitor. I am not practising at present, but I was a solicitor for 20 years and I dealt with many children's cases. In such cases, I found that the care proceedings involving the children were usually delayed for many months—if not for more than a year—until the criminal trial took place to see whether the parents were found guilty of the conduct that had damaged the children. The usual

reason given for that delay was that the parents were restrained from presenting their full case in the care proceedings because they had a right not to incriminate themselves in any criminal matter that was about to be dealt with in the criminal court. Often, the criminal trial had to take place first, and it took a long time because of the complexities of the case, so the children were left drifting in care for a long while. No permanent plans for them were made until there was a result to the criminal trial: only then could there be an end to the care proceedings. I am concerned about that. My plea with regard to the criminal procedure rules—and the family procedure rules, which we will come to later—is that we address that problem. It is unacceptable because the Children Act 1989 states that the welfare of the child comes first, and delay causes harm to children's development.

There have already been judicial attempts to stop that delay. In the Re TB (Care Proceedings: Criminal Trial) case in the Court of Appeal in 1995, Lord Justice Butler-Sloss said:

''Each case has to be seen on its own facts and considered on its own merits, and the welfare of the child has to take priority over the detriment to the family who are coming up for trial . . . One starts with the fact that the criminal proceedings of themselves are not a reason to adjourn the care proceedings.''

She went on:

''There is a Home Office circular that deals with any delay of civil proceedings pending the outcome of a criminal trial so that the criminal court shall be notified of the importance of bringing on that criminal trial as quickly as possible.''

Therefore, Lord Justice Butler-Sloss stated that the care proceedings should not automatically be held off for the criminal trial and, in any case, that the criminal court should be informed that something urgent is waiting on the outcome of such a trial so that the criminal proceedings can be expedited.

Photo of Mr Nick Hawkins Mr Nick Hawkins Conservative, Surrey Heath

I have been listening carefully to what the hon. Gentleman has said. In my practice at the Bar, I had similar experiences to those that he describes. I share his concerns. The comments of Lord Justice Butler-Sloss in that leading case should be taken into account. Does the hon. Gentleman agree that sometimes it would be very helpful if the criminal courts were obliged to take into account the wording that he has referred to—the welfare of the children is the first and paramount consideration? Perhaps that should be imported in some way into the criminal law.

Photo of David Kidney David Kidney Labour, Stafford

I thank the hon. Gentleman for those words, which are music to my ears. In the drafting of the rules that this clause permits the criminal procedure rule committee to make—and in the drafting of the family procedure rules that we are about to come on to—I would like there to be a much stronger emphasis on the welfare of the child and the principle that delays in proceedings may cause harm to children. I want to ensure that this situation is not a problem in the future.

This Bill gives us flexibility. For example, when this is the situation, a High Court judge, who has the skills to ensure that there is the protection against self-incrimination for parents and that the care

proceedings proceed quickly, can be drafted in to the family court premises to hear the care proceedings. We could also get on to the family court proceedings more quickly because we might have a centre in which the family proceedings and the criminal trial take place in the same building. That would help to hurry up the criminal proceedings.

I am asking for urgency on behalf of children. I hope that the Committee, the Minister and those who eventually form the membership of the rule committees take the need for this urgency on board and do something about what has caused serious harm to children in the past.

Photo of Chris Leslie Chris Leslie Parliamentary Under-Secretary (Department for Constitutional Affairs) 10:15 am, 8th July 2003

I am glad that we have had the opportunity to consider and discuss some wider aspects of policy and how those may touch on criminal procedure rules. I am not, however, entirely convinced that all the matters about which my hon. Friend spoke would be relevant to the criminal procedure rule committee—and I shall briefly explain why.

The clause introduces the principle that rules of court will govern the practice and procedure to be followed in the criminal courts in England and Wales. Those rules will be made by a new criminal procedure rule committee. Such measures are necessary to reduce the variety of approaches, which are a consequence of the current fragmented arrangements for making rules of court. Hopefully, we can modernise and streamline the processes by bringing them together under the criminal procedure rule committee. The clause directs that the power to make or alter rules should be exercised with a view to ensuring that the criminal justice system is accessible, fair and efficient, and the rules are simple and simply expressed. It expresses the principles that will be central to the work of the committee.

The measures are intended to ensure that new rules are developed with an underlying regard for the efficient running of a trial; it is also intended that they should be developed in such a way that the ordinary person in the street is capable of understanding how the processes and procedures work. Under the clause, criminal procedure rules may be made with different provisions for different cases or areas. It ensures that those can be made in support of new initiatives and that they may allow for pilot schemes to be established when it is necessary to do so. The clause will similarly allow for rules to be made that will govern specified courts or proceedings, such as youth courts. That was the main purpose behind the comments by my hon. Friend the Member for Stafford.

First, my hon. Friend explained in detail his views on care proceedings. He said that they are often delayed because the requirement for there to be a criminal aspect leads to involvement in consequential issues. He was concerned that there were perhaps undue delays caused by differences between the different processes. This is a complex matter. Without going into too much detail, I can tell the Committee that we have a general duty to reduce the

number of ineffective trials and ensure that the courts system works as efficiently as possible. We should ensure, as far as possible, that the interests of children are put at the top of our agenda.

I should not wish to give my hon. Friend the impression that the criminal procedure rule committee could deal with all the things that he mentioned, some of which were touched on in the White Paper, ''Justice for All''. Some of his specific points—for example, about the concern that is being shown in the system, and ensuring that the interests of children are looked after—have been brought to the forefront of policy. We must continue to ensure that that happens.

Secondly, my hon. Friend spoke about the venue for hearing serious offences involving children. He talked in particular about court layout and how plain dress might be adopted. Incidentally, we are in the middle of a consultation on court dress and I would not want to pre-empt that. That matter is being considered.

Photo of Mr Nick Hawkins Mr Nick Hawkins Conservative, Surrey Heath

The Minister should be aware that there is resistance from the official Opposition to the constant suggestion that such things are part of a drive towards so-called modernisation. Many hon. Members who practised at the Bar for many years believe that there are good reasons, which are too difficult to discuss in this brief intervention, why court dress has survived in its present form for many hundreds of years. I hope that the Minister will take that into account in any consultation.

Photo of Chris Leslie Chris Leslie Parliamentary Under-Secretary (Department for Constitutional Affairs)

I only mentioned that in passing, but I should have known that the hon. Member for Surrey Heath would find a way to introduce his antipathy to modernisation—indeed, to anything to do with the concept of modernity. I am sure that he is glad to have got that out of his system.

I can sympathise with the view of my hon. Friend the Member for Stafford, who says that in certain cases involving children we have to take account of the impact of court layout and the formality and nature of the court in order to secure a fair trial. However, the issue of the venue for trial—for example, whether it is heard in a Crown court or a youth court—is a matter for primary legislation, and would not come under the remit of the rule committee, although the issue of more child-friendly procedures for a Crown court case would. I know that my hon. Friend has a number of specific suggestions, and it is valid for him to raise the subject. By putting it on the record today, we are highlighting some of the issues that the criminal procedure rule committee might well consider.

Photo of David Kidney David Kidney Labour, Stafford

My hon. Friend the Minister says that the venue in which the court sits is a matter for primary legislation—but I referred to section 78 of the Supreme Court Act 1981, which says:

''Any Crown Court business may be conducted at any place in England and Wales''.

Does he accept that that legislation permits a venue other than a Crown court building?

Photo of Chris Leslie Chris Leslie Parliamentary Under-Secretary (Department for Constitutional Affairs)

I do not want to go through every aspect of statute law, but my understanding is that there are certain restrictions on where trials for grave offences

can be held. For example, murder cases have to go to the Crown court. I also understand that various Acts of Parliament, including the Children and Young Persons Act 1933, have restraining influences on where certain cases can be heard. If I am wrong, I will be happy to write to my hon. Friend and the Committee to correct myself. With that, I hope that the concept of criminal procedure rules in the clause will remain, and that the clause will stand part of the Bill.

Question put and agreed to.

Clause 69 ordered to stand part of the Bill.