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Coroners and Justice Bill

Perhaps the Minister will deal with a couple of queries. As he is well aware, Clause 91 deals with the examination of the accused through an intermediary, but we have questions about the situations in which this will be deemed to be appropriate. Where a defendant’s level of intellectual ability or social functioning is so compromised that he is unable to understand and respond to questions asked in language appropriate to his age by a prosecutor, defence lawyer or the court, it is very unlikely that he will be able to participate effectively in his trial for the purposes of the trial being fair according to Article 6 of the ECHR. In these circumstances, he should not be on trial at all, but should be diverted to an appropriate alternative process, whether through fitness to plead or some alternative procedure. If the defendant is unable to have a broad understanding of the nature of the trial process, or to have the "effective participation" in his own trial as was demanded in the judgment in the 2004 case of SC v United Kingdom, which includes an understanding of the significance of any penalty that may be imposed, the presence of an intermediary is unlikely to be a remedy. I welcome the Government’s comments on that. Another concern is that the intermediary may not be wholly independent of the defendant and may risk giving evidence on his own account when he ought simply to be transmitting the information going to and from the defendant. These concerns have been brought to our attention by, among others, the Law Society and Justice. As I made clear, our opposition to the clause is purely probing in nature at this stage, but we seek assurances from the Government on the two points raised. If what the Minister says is unsatisfactory, we might want to come back to the matter at a later stage.