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“Without witnesses, justice cannot be done.”
On the other hand, it must be paramount that trials be fair. However valuable anonymous evidence can be, it cannot be justified if its use undermines justice.
Does the Justice Secretary agree with me that while the judgment of the Law Lords has caused immediate problems that must be addressed, their duty is to uphold justice and the law, and that some of the personal attacks on the judiciary that we have seen this week are wholly unjustified? The Law Lords have invited Parliament to settle this question. Indeed, as the Justice Secretary noted, Lord Bingham said that the problem of witness intimidation may very well call for Parliament’s urgent attention. We appreciate the danger that trials will collapse. No one wants to see a situation where violent criminals evade justice because of a hiatus in the law.
We recognise our constitutional duty to scrutinise as best we can all legislation, especially emergency legislation, and not to attempt to hinder the Government improperly. However, for emergency legislation to be justified, the House will want to be assured that there is a pressing need and to understand the scale of the problem. Estimates of the number of cases affected have varied widely—from the claim of around 40 by the president of the Association of Chief Police Officers, to other suggestions of hundreds. Can the Justice Secretary say when he will be in a position to indicate more clearly the number of cases affected and their nature? Will he also undertake to publish an assessment of the growth and nature of witness intimidation, so that judgment may be exercised about the severity of the problem? Can he tell us what the Government are doing to ensure that victims and witnesses receive the support and protection they need, beyond the granting of anonymity during a trial?
We welcome the Justice Secretary’s indication that these measures could be refined in the forthcoming law reform, victims and witnesses Bill, but will he accept that the sunset clause to which he referred in this emergency legislation should be an express time limit on the face of the Bill? The House should be wary of emergency legislation with an open-ended time scale.
My party is committed to working with the Government in a constructive way to deal with this problem, but will the Justice Secretary consider carefully whether it is wise to rush through all stages of the Bill in this place in one day? The history of one-day legislation is not a happy one. Even if we need to pass laws urgently, we must do so carefully, particularly where public safety and the liberty of the individual are concerned.
Can the Justice Secretary provide more clarity on the Bill’s application and how it will apply retrospectively? In particular, what will happen in cases in which anonymous evidence has already been given but the trial is still in progress? Will these provisions act to ensure that existing convictions are not threatened unless the trial was otherwise unfair? Where the adversarial system cannot operate fairly because one side is denied vital information, is there not a case for adopting a more inquisitorial approach? In the New Zealand legislation, the judge is permitted
to appoint special counsel to investigate important considerations of witness credibility. What consideration has the Justice Secretary given to granting similar powers to English judges?
The use of anonymous witnesses in criminal trials should always be a last resort, not a first response. Does the Justice Secretary therefore agree that the purpose of the legislation that he has announced today should be not simply to allow the use of anonymous evidence, but to ensure above all that justice is done?
Mr. Straw: I thank the hon. Gentleman for his comments and, as I said earlier, for the co-operation that the official Opposition and the Liberal Democrats separately have offered the Government. I of course accept what he says—that there is a balance here, with two competing considerations: the need for the public to be protected from serious and dangerous criminals, and the paramount need to ensure that the trial process is fair and that those for whom the evidence does not exist are not convicted. That has to be the paramount consideration, but what the courts have sought to do over some decades is properly to balance those considerations. I had never been aware of any complaints about the way in which the courts, up to and including the Court of Appeal, had secured the anonymity of witnesses but the fairness of the trial process. Just one indication of that is that my parliamentary branch tells me that it knows of no parliamentary questions on that, and I have had no ministerial correspondence on it. That contrasts with the hundreds of parliamentary questions and thousands of letters on all the issues that concern the British public and Members of this House.
Let me run quickly through the points that the hon. Gentleman raised. I am very grateful to him for what he says about the gratuitous attacks on the judiciary; they are totally unjustified. As in any country that runs by the rule of law, we have to have a judiciary that is separate and independent from the Executive and the legislature. By definition, that means that there will be occasions when an independent judiciary make judgments that are inconvenient to the Executive and the legislature. That is their job. Ultimately, this is the high court of Parliament, because central to our constitution is the sovereignty of Parliament and we, ultimately, can decide. But within that system, that independence must be respected and preserved.
On the issue of the numbers, the hon. Gentleman is right to say that the president of ACPO suggested that there could be 40 or so. What I understand—it is for him to say this, not for me—is that he was describing the police estimate of the number of really serious cases involved. The other estimates that have been around are all-encompassing ones of any potential cases in the pipeline—they could involve, for example, test purchases of drugs—which I think could be more. However, it is precisely because there is a definitional problem that I do not wish to give this House estimates, unless I am satisfied that they are reasonably accurate.
The hon. Gentleman asks whether we can provide an assessment of the growth and nature of this problem. I will do my best—there is simply an issue of time here, and the capacity of the officials involved. I understand the point that he is making.
Great steps have been made, going back to the early 1990s, progressively to improve victim and witness protection. Victim Support funding has greatly grown,
there are measures in a whole series of statutes going back to 1997, and there will be further measures in the Bill in the Queen’s Speech at the end of this year. That said, however effective witness protection and witness support measures are, there will still be some cases where the only effective protection to ensure that the witnesses come forward is to anonymise their evidence.
The hon. Gentleman asks about the sunset clause. The promise that I have made is an absolute promise, and if I may, I might consult him and the Liberal Democrat spokesman outside this House about some of the difficulties in putting that on the face of the Bill, but I promise that that does not detract from the absolute commitment that I have already given. On the question of taking all the stages in one day, I will discuss that with the usual channels, without any commitment, because the usual channels are a law unto themselves—always have been, always will be. [ Interruption. ] And often anonymous.
On the Bill’s application, it will apply to England, Wales and Northern Ireland. On how it will apply retrospectively, the question is how it will apply for the future in respect of out-of-time appeals, appeals that may be in time, and trials that are under way in respect of events that have already happened, which may involve a conviction. That way forward is as I described towards the end of my statement, which is that there will be measures to ensure that the appeal court will not quash convictions solely on the basis that the trial court lacked the jurisdiction under the common law, as is now known but was not known before Wednesday, to provide for anonymity measures. More detail will obviously be given in the Bill.
We have considered the inquisitorial approach in New Zealand. The New Zealand drafters, although not formally subject to the convention, took full account of it in their drafting. There is a lot to learn from that. Whether to shift further from an adversarial to an inquisitorial approach in our courts is a big issue that is not for an emergency Bill.
Mr. Andrew Dismore (Hendon) (Lab): I congratulate my right hon. Friend on his statement on a difficult issue. He is doing the best that he can in an urgent position. Clearly, we have to respect the human rights of the victims, their families and the witnesses in this process, but will the legislation include as part of the framework a list of factors that the judges ought to take into account in exercising their discretion? Will he also confirm that the legislation will not be inconsistent with what the Judicial Committee of the House of Lords has said is required by article 6?
Mr. Straw: I am grateful to my hon. Friend, who is extremely well versed in human rights legislation as Chairman of the Joint Committee. There will be a list of factors. The overarching principle will be that the trial judge has to assess whether the arrangements that he or she is making will be fair. Section 19 of the Human Rights Act 1998 requires me to sign a certificate on the face of the Bill stating whether I judge the Bill to be consistent or inconsistent with the convention, and I will do that.
David Howarth (Cambridge) (LD):
I also thank the Secretary of State for early sight of the statement and for the informal consultations that have taken place. It is a basic principle that defendants should be able to
confront the witnesses against them, but it is also fundamental that the rule of law must be defended against intimidation and threats. Will the right hon. Gentleman acknowledge that Liberal Democrat Members also fully recognise that the law has to strike a balance between those two fundamental principles, and that ultimately the details of how to do that lie with Parliament, not with the judges?
I also want to associate Liberal Democrat Members with the comments that have been made about the attacks on the judiciary, which have been scurrilous and completely misunderstand the constitutional function of the judges. In this case, the judges are doing their job well because they are forcing us to think clearly about something that has not been thought about clearly up until now.
May I take it from what the Secretary of State has just said that he does accept what Lord Carswell said in the Davis case—that there should be a presumption in favour of openness, and that anonymity should be allowed only where a clear case is made out for its necessity?
I agree fully with what the right hon. Gentleman said about the risks of legislating in haste and I have some detailed points to make, but they are designed to help the Bill rather than to hinder its progress. First, I must urge him to go back to the point made by the hon. Member for Arundel and South Downs (Nick Herbert) about the New Zealand Evidence Act 2006, which includes the provision for independent counsel to make a report about credibility. Not only is that an important safeguard for the defence, but it is important for the prosecution in safeguarding the case against the accusation that it is unfair.
Secondly, as the right hon. Gentleman said, the Bill will be essentially temporary. Its most important provisions will be those transitional provisions about the pending and recent cases. I shall be grateful for the figures about how many cases there are when they are available, and I am already grateful for what he said about overruling the House of Lords’ decision only prospectively. That is quite proper in such circumstances. However, the right hon. Gentleman did not properly cover the problem of cases that have started now and will continue after the new law is in place. What he said about the common law situation does not apply to those cases. He might want to think about that further.
Lastly, I am far from convinced that anonymity is required in the magistrates court for less serious crimes. I know that there is the Al Capone point that sometimes very bad people can be nailed for only quite minor offences, but how frequent is that? Could the right hon. Gentleman tell the House, either now or later, how many of the pending and recent cases are magistrates court cases?
I assure the right hon. Gentleman that Liberal Democrat Members will do what we can to help the passage of the emergency legislation that he proposes, but we reserve the right to revisit the details of the scheme in the permanent legislation in the autumn.
Mr. Straw:
I am grateful to the hon. Gentleman. I was glad, although it was not wholly unexpected, to hear him join the Conservative Front-Bench spokesman and me in deprecating the attacks on the judiciary that
have taken place. I do not think that anyone argues with Lord Carswell; it is not a point exclusive to him, but is common to all the judgments in this case, by the Court of Appeal as well as by the House of Lords, and it is a central part of the way in which we operate, that there has to be a presumption in favour of openness. That is the basis on which the trial courts and the Court of Appeal have always operated and is not particularly in issue. The question is on what basis courts should move against that presumption and how they judge that. We are looking at the issue of independent counsel. There are circumstances in which use is made of special advocates in our system, which amounts to the same thing, but there are problems with that.
We should not get ourselves into a huge lather about transitional arrangements. There is a world of difference between legislation that is retrospective to create substantive criminal offences, which has been regarded as totally out of order in all circumstances, and legislation that changes criminal procedure, which can operate only from the day when it comes into force but then makes a difference as to how cases are judged prospectively, including cases that are in the pipeline, whether that pipeline is trial or appeal within the normal time limits, and cases that come into a new pipeline, which are cases in our system referred well out of time by the Criminal Cases Review Commission or which gain direct access to the Court of Appeal.
The Bill is effectively designed to say that from the time that it comes into force, which will be very shortly, the courts will not have to quash a conviction, nor, by the same token, will the trial be aborted, simply because the arrangements made might have been regarded as outwith the Law Lords’ judgment. That is the point of it. We are working hard on the drafting, but it is so that there is as little disruption as possible to trials currently taking place and in the pipeline, to normal-time appeals and to out-of-time appeals.
Mrs. Betty Williams (Conwy) (Lab): I congratulate my right hon. Friend on the way in which he has dealt with what I am sure all hon. Members appreciate is a difficult issue. Does he agree that if the Government were not taking this immediate action to overturn an irresponsible judgment, hundreds of cases would be in danger of collapse?
Mr. Straw: I am grateful to my hon. Friend. As in her area in the north-east, which is no different from many other areas throughout the country, most people—an increasing majority—are law-abiding, but there are some serious criminal gangs, and it is vital that those involved in such gangs are brought to justice, but they will receive justice only if the trial process is fair. As I have already explained to the House, I have not given numbers today because we have not been able to pin down precise estimates. The ACPO president, Ken Jones, has provided the police’s best estimate of the serious crime cases, and there have been some other estimates, which are much more all-embracing, of any cases that potentially come within this category. As soon as we can pin down the estimates, we will bring them forward.
Sir George Young (North-West Hampshire) (Con):
In his statement, the Secretary of State said that it was essential that the Bill receive Royal Assent and come
into force before Parliament enters the summer recess. Can he explain to a layman the practical consequences if we do not get Royal Assent by the summer recess, and might he consider delaying the start of the recess if we need more time to consider the Bill?
Mr. Straw: Like the right hon. Gentleman, I am always happy for the House to sit longer, and I recall that he and I were on the same side on the issue of hours, Thursdays and such matters. I would be happy to see those issues revisited, but the question of delaying the start of the recess is a matter for the usual channels.
The need for urgency arises because some cases are currently in court, and others in the pipeline. Given the clear intention on both sides of the House to rectify the gap created by the Law Lords’ judgment, we do not want to see applications made by the defence in those cases either for acquittals or for very expensive retrials. Although this is entirely a matter for the judiciary and not for me, I hope—in the light of what I have said today and of the Bill, if it is passed as I hope it will be—that at worst, cases will be adjourned until the Bill comes into force.
Mr. Khalid Mahmood (Birmingham, Perry Barr) (Lab): I thank my right hon. Friend and his colleague for taking time yesterday to discuss this serious and urgent issue with me. I have a real concern about this in relation to events in my constituency that involved anonymous witnesses. There is huge fear in the community that if the ruling continues, people will be allowed out to intimidate more people. As the hon. Member for Arundel and South Downs (Nick Herbert) says, the problem is not only the cases before the courts now, but possible future cases in which defendants may seek to intimidate, bully and victimise people to ensure that no one comes forward to stand up against them. That is why it is important that we get this measure through as soon as possible.
Mr. Straw: My hon. Friend had a meeting with me to express his concerns on behalf of his constituents in Perry Barr, and I am well aware of the cases to which he refers. There is real concern in his area, as in others, that witnesses who have been guaranteed anonymity might find that the cases in which they were involved have altered. The purpose of my statement, and of the Bill that will be introduced shortly, is to ensure that the guarantees that the police and the prosecution made to those witnesses continue. That is our urgent intention.
Sir Alan Beith (Berwick-upon-Tweed) (LD): Clearly society cannot allow people to escape the rule of law by virtue of their known ability to intimidate witnesses or terrorise whole communities. I welcome the Lord Chancellor’s careful and proportionate attempt to address the problem. But what course of action would be open to the defence if they had good reason to believe that a witness given anonymity might be someone whose credibility the jury would seriously doubt were the full facts about them to be known?
Mr. Straw:
I am grateful to the right hon. Gentleman for what he has said. The issue that he raises is inherent in the problem of whether to grant anonymity. Some categories of witnesses do not raise questions of credibility, such as innocent bystanders—as often happens in gang
and gun-related crimes—or undercover police officers. In either case, the defence may still try to challenge their character or credibility, but they are unlikely to succeed. In other cases, crucial evidence that is believed by the jury can come from the mouths of people with a criminal past and probably present, and whose character is certainly open to challenge. That was one of the main issues in the Davis case. The trial judge sought to make, and the Court of Appeal laid down, arrangements by which the nature of the witness’s character and antecedents could be brought out, so far as humanly possible without directly identifying him. Warnings were given to the jury, but ultimately the essence of our trial system is that the evidence is put before the jury, with appropriate warnings where necessary, and 12 good people and true—it used to be 12 good men and true—make their judgment. On the whole, and especially with all the other safeguards that we have in place, the system rarely allows for anybody who is innocent to be convicted.
Andrew Miller (Ellesmere Port and Neston) (Lab): Each and every one of us has dealt with constituency cases in which people are frightened to give evidence for fear of intimidation and reprisals. Today, with support from both sides of the House, my right hon. Friend has made an important statement in respect of the more extreme cases. However, whether anonymity is granted or not, can we not use the forthcoming legislation as an opportunity to make it unambiguously clear that this House accords the utmost importance to the protection of witnesses and encourages them to do their civic duty? Should we not use the opportunity to make it clear to all public authorities that the duty of care that they have towards people who have been witnesses in serious crime cases should be as high as possible?
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