Coroners and Justice Bill

I think that the noble Lord, Lord Henley, and I were expecting the amendment to the clause to be moved, so if noble Lords will forgive me, I shall use my overall notes suitably amended. Clause 91 enables the court to permit eligible vulnerable defendants to be assisted by an intermediary to communicate and understand if and when they give oral evidence at trial. Intermediaries are already available to assist vulnerable witnesses under Section 29 of the Youth Justice and Criminal Evidence Act 1999. The 2005 ECHR judgment in the case of SC held that, when there was a risk of a defendant’s being unable to participate effectively in criminal proceedings because of youth or "limited intellectual capacity", it was "essential" that the courts, ""give full consideration to, and make proper allowance for, the handicaps under which he labours, and adapt its procedure accordingly"." Crown Courts already have inherent powers to permit a vulnerable defendant to use an intermediary when giving their oral evidence if it is necessary to ensure that they receive a fair trial. This clause puts this power on a statutory footing and extends the availability of intermediaries to vulnerable defendants in magistrates’ courts. An intermediary’s role is limited to assisting the witness to communicate and understand. They can therefore communicate to the witness questions asked by the court, the defence and the prosecution. They can also communicate the answers that the witness gives. The intermediary may also explain questions and answers if it is necessary to enable the witness and the court to understand each other. Intermediaries are independent of the defendant. Their paramount duty is to provide a service to the court. They are not on the side of either the prosecution or the defence; they are neutral and take an oath to the court to perform their services faithfully, as a translator of a foreign language would. The court may also discharge such a direction and, as a safeguard, may vary one where this is necessary. The Government intend that this clause will assist those defendants who genuinely have severe recognised communication problems to give their evidence and thus ensure that they receive a fair trial. The questions of whether the defendant is fit to plead and the use of an intermediary are two separate issues. The tests that the court is asked to apply in each case are different. In the case of fitness to plead, the common law test is more stringent and about a defendant’s capacity to comprehend the course of the proceedings so as to make a proper defence. The law enables the defence or prosecution to make a claim to the court that the defendant is unfit to plead. This is a matter for them to decide. If such a claim is made, the judge will determine this only in the light of evidence from medical practitioners, at least one of whom must have special experience in the diagnosis or treatment of mental disorder. A separate application by the defence for an intermediary will instead be relevant if a contested trial is to proceed and the defendant intends to give evidence and requires assistance with communication for this purpose. It does not follow that, when an intermediary is needed in the interests of a fair trial, a defendant should not be tried at all. While I understand the concerns that have prompted the amendment, it would be wrong in principle to restrict the ability of the defence to apply for an intermediary for a defendant by making it a condition that fitness to plead must be determined first. This would be an inappropriate and unnecessary restriction on the defence, particularly bearing in mind their professional duty to their client. There will be many defendants who are fit to plead and yet, in the interests of a fair trial, require some aid communicating when giving their evidence. We expect that fitness to plead will ordinarily be determined first, before arraignment. Following this order would have the additional benefit that the evidence of specialist medical practitioners as to the defendant’s fitness to plead might also address whether, if the trial were to go ahead, that defendant had communication problems for which an intermediary might be required. However, in the interests of the accused, the court may postpone the issue of fitness to plead to any time up to the end of the prosecution case. The issue of fitness may be raised by the defence, prosecution or court itself. This provides for the necessary flexibility to accommodate circumstances when—for example, due to the nature of the disability—it may not be appropriate to determine the question from the outset. In the light of this explanation, I hope that the noble Lord will support the clause.